Weapon Use (incl. PC 12022.53)
Category > Weapon Use (incl. PC 12022.53)
Updated 7/12/2024The trial court, after striking a section 12022.53 enhancement, has discretion to impose a lesser included uncharged enhancement under another law.When a trial court has exercised its discretion under subdivision (h) to strike a Penal Code section 12022.53 enhancement and finds no other section 12022.53 enhancement is appropriate, the second sentence of subdivision (j) is inapplicable and does not bar the court from imposing a lesser included, uncharged enhancement under a law other than section 12022.53. The court has discretion to impose such an enhancement if it is supported by facts that have been alleged and found true.id: 28302
Updated 3/7/2024The gun use enhancement was stricken as to the section 25800 count where defendant’s possession of the weapon with the intent to commit a felony did not establish use in the commission of a felony. Defendant was convicted of carrying a loaded firearm with the intent to commit a felony under Penal Code section 25800(a). The section 12022.5 firearm use enhancement attached to that count was improper because defendant’s act of carrying the gun intending to commit a felony did not mean he used it in the commission of a felony. The enhancement finding was stricken.id: 26356
Updated 3/4/2024SB 620 applied retroactively to defendant’s case that was not final when the law became effective where the court suspended execution of sentence.SB 620, which amended Penal Code section 12022.5(c) to give the trial court’s discretion to dismiss firearm use enhancements applied retroactively to defendant’s case that was not final when the new law came into effect. For retroactivity purposes, suspending execution of defendant’s sentence and placing him on probation constituted a judgment conditional in nature, rather than a final judgment, given the court’s ongoing authority to revoke, modify or terminate probation during the supervision term.id: 26989
Updated 2/4/2024The trial court erred in imposing both a gang and firearm use enhancement where the defendant did not personally use a firearm. In cases where the defendant did not personally use a firearm, the trial court may not impose both a gang enhancement under Penal Code section 186.22 (b) and a firearm enhancement. id: 27781
Updated 2/4/2024The trial court may impose a lesser uncharged gun enhancement after striking the greater enhancement under section 12022.53.Following People v. Tirado (2022) 12 Cal.5th 688, the sentencing court may impose an uncharged lesser included enhancement under Penal Code section 12022.5 after striking a greater enhancement under section 12022.53.id: 27568
Updated 2/3/2024If the court decides to strike the section 12022.53(d) firearm use enhancement it has the discretion to impose a lesser uncharged enhancement. Penal Code section 12022.53 establishes a tiered system of sentencing enhancements for specified felonies involving firearms. If the trial court decides to strike the section 12022.53(d) life term enhancement, it has the authority to impose a lesser uncharged enhancement under either subdivision (b) or (c). id: 27774
Updated 2/1/2024Remand for resentencing was required in light of Tirado to allow the court to impose a lesser uncharged section 12022.53 enhancement.While defendant’s appeal was pending the California Supreme Court decided People v. Tirado (2022) 12 Cal.5th 688, which gave trial courts the discretion to impose lesser uncharged firearm use enhancements. Remand was required to allow the court to strike the Penal Code section 12022.53(d) enhancement and instead impose a lesser enhancement.id: 27973
SB 620 applies to cases not yet final when the law took effect.The amendments to Penal Code section 12022.5, subd. (c) and section 12022.53, subd. (h) (provided by SB 620) granting the trial court discretion to strike firearm enhancements apply retroactively to cases not yet final at the time the amendments took place.id: 26182
The trial court had discretion under SB 620 to impose a lesser related enhancement under section 12022.53, subd.(b) or (c).Defendant moved to recall his sentence based on recent amendments to Penal Code section 12022.53 that gave the court discretion to strike a firearm enhancement. However, at the new sentencing hearing, the court did not understand the scope of its discretion. The choices were not merely strike the 25 years- to-life enhancement under section 12022.53, subd. (d) or reimpose the original term. The court also had the option of modifying the enhancement to a “lesser included” term under section 12022.53, subd.(b) or (c), which carry lesser terms of 10 years or 20 years, respectively. The matter was remanded so that the court could properly exercise its discretion.id: 26145
Defendant whose case was remanded for a limited Franklin hearing, was also entitled to a Prop 57 juvenile transfer hearing, and could seek a dismissal of a firearm enhancement under SB 620. Defendant was a minor when the offense was committed, but directly charged and tried as an adult. The appellate court later ordered a limited remand so that defendant could make a record regarding information relevant to his eventual youth offender parole hearing. Thereafter, the voters (in Prop 57) withdrew prosecutorial discretion for direct filing in adult court. Defendant was entitled to a juvenile fitness/transfer hearing under the new law despite the limited remand order. At that hearing, defendant may also ask the court to exercise its discretion to strike a firearm enhancement under SB 620, which was also recently added.id: 26115
Where Prop 57 and SB 620 took effect after defendant’s plea deal, he could seek relief on appeal despite the lack of a certificate of probable cause.Defendant committed offenses when he was 17 years old and entered into a plea agreement. After the plea, Prop 57 took effect along with SB 620, and defendant argued on appeal that he was entitled to a remand for a juvenile fitness hearing, and a resentencing where the court could exercise discretion to dismiss the gun enhancement. Defendant was permitted to raise these issues despite his failure to seek a certificate of probable cause in support of his appeal because the changes were implicitly incorporated into the plea agreement. Hence, his contentions did not challenge the validity of his plea.id: 25945
The trial court erred by imposing three consecutive one-year terms for each of the deadly weapon enhancements on the single attempted murder count.Defendant was convicted of the attempted murder of his wife and sentenced to a life term. The trial court erred when it imposed to that count three consecutive one-year enhancements for the use of different deadly weapons. Penal Code section 654 prohibits multiple punishment under these circumstances even with an indeterminate term.id: 25881
Defendant was entitled to the retroactive application of both Prop 57 and SB 620.Defendant was convicted of murder based on a shooting that occurred when he was 17. While his appeal was pending the electorate enacted Proposition 57 requiring transfer hearings for minors, and the Legislature enacted SB 620 giving trial courts discretion to dismiss firearm-related enhancements. Because defendant’s appeal was pending he was entitled to the retroactive application of both provisions.id: 25820
Defendant was entitled to a remand for resentencing under SB 620 where the trial court did not clearly indicate it would not have exercised its discretion to strike the gun enhancement.The trial court imposed sentence for defendant’s firearm use under Penal Code section 12022.53, subd.(c), before the effective date of SB 620, which gave trial courts discretion to dismiss firearm enhancements. The matter was remanded for resentencing since the court did not clearly indicate it would not have exercised its discretion to strike the firearm enhancement.id: 25636
Remand was required to allow the sentencing court to dismiss the gun use enhancement in light of SB 620.The jury found defendant intentionally discharged a firearm during the murder for purposes of the Penal Code section 12022.53, subd.(d) enhancement. The trial court then imposed the 25 years-to-life term, which was mandatory at the time. Thereafter, SB 62 was enacted giving trial court discretion to dismiss firearm enhancements in the interest of justice. That provision applies retroactively, and defendant was entitled to a remand where the record shows the court might have been open to the possibility of dismissing the enhancement.id: 25648
In light of SB 260, defendant was entitled to a remand to give the trial court the opportunity to dismiss the firearm use enhancement.Defendant was convicted of first degree murder along with a firearm use enhancement. He was sentenced to 25 years-to-life for the murder and another 25 years-to-life for the enhancement. However, SB 620 became effective on January 1, 2018, and that law vests trial courts with discretion to dismiss firearm enhancements in the interest of justice. The law applies retroactively, and defendant was entitled to a remand because the record contained no clear indication that the trial court would not exercise its discretion to dismiss the firearm use enhancement. id: 25621
SB 620 applied to defendant’s appeal, and the matter was remanded to allow the court a chance to dismiss the firearm related enhancements.Defendant was entitled to a remand in order to allow the sentencing court to dismiss a gun use enhancement, where the new law providing sentencing courts with that discretion became effective while defendant’s case was pending on appeal.id: 25564
Remand was necessary to allow the court to exercise its discretion under the newly enacted section 12022.53, subd.(h), to strike the firearm use enhancement.Penal Code section 12022.53, subd.(h), effective January 1, 2018, provides trial courts with discretion to strike firearm enhancements. The provision applied retroactively to defendant’s case that was not final at the time it became effective. The case was remanded so that the trial court could exercise its discretion to strike the Penal Code section 12022.53 firearm use enhancement imposed in the case.id: 25503
A trial court may not impose both firearm and gang enhancements in connection with a single offense where the offense is a serious felony for purposes of the gang enhancements because of the firearm use.A trial court is precluded from imposing both a firearm enhancement under Penal Code section 12022.5, subd.(b)(1)(B) and a serious felony gang enhancement under section 186.22, subd.(b)(1)(B) when the crime qualifies as a serious felony solely because it involved firearm use. Because both enhancements were based on defendant’s use of a firearm when committing a single offense, section 1170.1, subd.(f) requires that only the greater of the two enhancements may be imposed.id: 24125
The trial court prejudicially erred by instructing on the elements of the gang offense rather than the gang enhancement, and the error required reversal of the gang and firearm use enhancements.The gang enhancement findings had to vacated where the trial court improperly instructed the jury on the elements of the gang crime described in Penal Code section 186.22, subd. (8), when the defendants were charged with the gang enhancement described in section 186.22, subd. (b). The true findings in the firearm use enhancements were also vacated because they were dependent on the jury also finding true the gang enhancement allegations.id: 23255
Change in law excluding pellet guns from definition of firearm required firearm use enhancement finding be struck. Defendant was charged under former Penal Code section 12022.5, subd.(a) with the personal use of a firearm, to wit, a “pellet gun” in the commission of the murder. However, as amended in 1991, section 12001 (defining firearm) did not include pellet guns. Because defendant’s judgment was not final at the time of the amendment the firearm use enhancement was struck and replaced with a deadly or dangerous weapon use enhancement. id: 23582
The trial court did not err by staying the sentence for the section 12022.5(a) firearm use enhancement and imposing the 10 year “violent felony” term for the section 186.22, (b)(1)(c) gang enhancement. The trial court did not err when it found it lacked discretion to impose both the personal use enhancement under Penal Code section 12022.5, subd.(a) and the gang enhancement under section 186.22, subd.(b)(1)(B) or (b)(1)(c). It did not matter that the gang enhancement was generically pled and there was no gun use allegation or finding made by the jury in connection with that enhancement.id: 22690
The trial court improperly imposed enhancements for both personal firearm use and committing a violent felony to benefit a gang.Defendant was improperly convicted of both assault with a semiautomatic firearm under Penal Code section 245, subd.(b) (two counts) and assault with
a firearm under section 245, subd.(a)(2) because the latter was a lesser included offense of the former. The court also erred by imposing ehancements for both personal firearm use under section 12022.5, subd.(a), and committing a violent felony to benefit a gang under section 186.22, subd.(b)(1)(c), as section 1170.1 provides that only the greater of the
enhancements could be imposed. id: 22825
Imposition of both firearm use and GBI enhancements based on the single act of pulling the trigger violated section 654.Defendant both personally used a firearm under Penal Code section 12022.5 and personally inflicted great bodily injury during the domestic violence under Penal Code section 12022.7 by a single act - pulling the trigger. The imposition of separate and unstayed sentences on both the firearm use enhancement and the great bodily injury enhancement violated Penal Code section 654.id: 22013
The trial court misunderstood its sentencing options and the matter was remanded for resentencing. In People v. Palacios (2007) 41 Cal.4th 720, the court held that Penal Code section 654 did not prohibit multiple sentence enhancements under section 12022.53, when it did not prohibit multiple punishment of the underlying crimes. Here, the sentencing court mistakenly believed Palacios required the court to impose consecutive enhancements under section 12022.53(d) whether or not section 654 prohibited multiple punishment for the underlying offenses. The matter was remanded to the trial court to determine whether the shooting was incidental to the robbery pursuant to section 654, and if not, whether to impose a concurrent or consecutive term for the robbery count.id: 22067
There was no evidence to support the finding that defendant personally wielded a stake in the attack on the victim.The evidence was insufficient to support the finding that defendant used a deadly weapon in the commission of various crimes. While he admitted raping, kicking and other acts against the victim, he denied personally using the stake or stick and attributed those acts to the others involved in the incident. There was no evidence from which a rational trier of fact could find beyond a reasonable doubt that defendant personally wielded the stake in the attack.id: 22554
The enhancement for firearm discharge by a co-principal that caused death in a gang felony (section 12022.53, subds. (d)and (e)(1)) does not apply where defendant was not convicted of an enumerated offense such as murder. Defendant was convicted as an aider and abettor of voluntary manslaughter rather than the charged murder. A codefendant was convicted of murder. The 25 years-to-life firearm use enhancement under Penal Code section 12022.53, subds.(d) and (e)(1) may apply to a nonshooting aider and abettor but only if defendant is convicted of the enumerated offense such as murder. Voluntary manslaughter is not an enumerated offense and so the section 12022.53, subd.(d) enhancement could not be applied. id: 21824
The trial court erred by imposing both the 25 year gun enhancement and the minimum parole eligibility under the gang statute. Defendant was convicted of
attempted premeditated murder with various enhancements. Because the trial court imposed the
Penal Code section 12022.53, subd.(d) gun use enhancement, it was barred from also imposing
the 15 year minimum parole eligibility period under the gang statute - section 186.22, subd.
(b)(5).id: 21340
The firearm use enhancement was stricken because defendant could not have vicariously discharged the gun killing Palacios because Palacios was the lone shooter and could not be a principal in his own murder.Defendant was convicted of the second degree murder of Palacios along with a finding that he vicariously discharged a firearm within the meaning of the Penal Code section 12022.53(c)(e) enhancement. However, the evidence was insufficient to support the finding that defendant vicariously discharged a gun, because Palacios, as the lone shooter (and the only armed person in defendant’s group) could not be a principal in his own murder. The firearm enhancement was stricken.id: 21815
Discharging a firearm from a vehicle enhancement does not apply where the victim was inside of a car at the time of the shooting. Penal Code section 12022.55 provides a 5, 6, or 10 year enhancement where the discharge of a firearm from a vehicle causes death or great bodily injury. However, the enhancement could not be applied in the present case because the victim was an occupant of a car and the statute expressly excludes such a circumstance. It makes no difference whether the victim was in defendant’s car or someone else’s. id: 21582
Where evidence did not support the charged firearm use enhancements, the court could not substitute another uncharged subdivision and the prosecution forfeited the issue by not raising it earlier.The evidence was insufficient to prove the defendant personally used or discharged a firearm, and therefore did not support the charged Penal Code section 12022.53 subds. (b)(c), or (d), or section 12022.5 enhancements. Moreover, the findings on the enhancements cannot be saved by applying, for the first time on appeal, the uncharged provision of section 12033.53, subd.(e)(1), Applying that section would violate the language of that provision (requiring that it be pled) and the notice requirement of due process. Moreover, by failing to plead the subdivision, or argue for its application at sentencing, the prosecution forfeited the right to rely on it.id: 21511
Section 1170.1, subd.(f) prohibits the imposition of multiple enhancements for the use of a firearm in a single offense. Defendant was convicted of three counts of assault with a firearm along with true findings as to each count that he used a firearm (Penal Code section 12022.5, subd.(a)) and the assaults were committed to benefit the gang (section 186.22, subd.(b)(1)(c).) The trial court erred by imposing punishment for firearm use under both enhancement provisions. Section 1170.1, subd.(f) prohibits the imposition of additional punishment under more than one enhancement provision for using a firearm in a commission of a single offense.id: 21245
The trial court erred in sentencing defendant who did not personally fire the gun to both a life term under section 186.22, subd.(b)(4) and the 10 year enhancement under section 12022.53, subds.(b) and (e)(1).Defendant was convicted of a gang related crime in the commission of which he did not personally discharge a firearm, but a companion did. The trial court sentenced him to life in prison because of his participation in a criminal street gang and an additional term because of the gun use. However, the life term was proper but because he did not personally fire the gun, the additional term under Penal Code section 12022.53, subds.(b) and (e)(1) was not.id: 21244
With the underlying assault with a deadly weapon offense, the trial court could not add the one year armed principal enhancement (although is could add a five year gang enhancement).Defendant’s underlying offense of assault with a deadly weapon under Penal Code section 245, subd.(a)(2) involved the personal use of a firearm as an element, and thus the trial court improperly imposed a one year armed principal enhancement under section 12022, subd.(a)(1). Moreover, because the underlying offense was a “serious” but not “violent felony the trial court was required to impose only the five year (rather than the ten year) section 186.22, subd.(b) gang enhancement.id: 20595
The trial court erroneously modified the CALJIC instruction to omit reference to the accomplice limitation contained in the section 12022.53, subd.(d) enhancement.The trial court incorrectly modified CALJIC No. 17.19.5 to omit the requirement that he must have inflicted great bodily injury upon a person "other than an accomplice." Since the victim was an accomplice to the target crime but could not be an accomplice to his own murder, defendant was entitled to the benefit of the accomplice exception where the murder was the natural and probable consequence of the crime to which he was an accomplice.id: 18529
Gun use could not be used to impose both the One Strike and the section 12022.5, subd.(a) enhancement.he circumstance of gun use was not available to support the Penal Code section 12022.5, subd.(a) enhancement since the gun use had already been properly pled and proved as a basis for invoking the One Strike law. The prosecution argued the error was harmless because the trial court could substitute in the circumstance of multiple victims and thereby free up the gun use as a basis for imposing the additional section 12022.5, subd.(a) enhancement. However, because the multiple victim circumstance had never been pled, it could not be substituted in hindsight as a basis for the One Strike terms.id: 16727
Instruction relating to section 12022.53 enhancement improperly allowed the jury to find the allegation true without finding defendant’s conduct was a proximate cause of the killing.Defendant was one of several people who shot at the victim, who was struck by bullets from two or three different guns. There was no evidence that defendant fired one of the these guns. The trial court erred by modifying the causation instruction applicable to the Penal Code section 12022.53, subd.(d) firearm enhancement to state that the allegation could be found true if defendant or a coperpetrator harmed the victim, and by failing to instruct that concurrent causes could act together to determine proximate cause. The jury could have found the allegation true without finding defendant’s conduct was one of the causes. However, the error was harmless since the jury found defendant proximately caused the victim’s death by finding him guilty of murder.id: 20429
Trial court should have stricken, not imposed and stayed, the lesser firearm use enhancement.The trial court imposed a 25 years-to-life term for the personal and intentional discharge of a firearm under Penal Code section 12022.53, subd.(d), and then imposed, but stayed, a consecutive four year term for personal use of a firearm under section
12022.5. The trial court should have stricken, not imposed and stayed, the lesser firearm use enhancement.id: 19853
Defendant who exposed a gun in a convenience store hoping to get shot by police could not be found to have "used" a gun under section 12022.5, subd.(a) although he was "armed" under section 12022, subd.(a). The evidence showed defendant was armed with a shotgun when he entered the convenience store and that when he entered the store he intended to use the gun to trigger a lethal response and commit "suicide by cop." After entering the store he laid the gun down on a candy rack. Because there was no evidence of any action taken with the gun, or of any gun-related conduct, the evidence was insufficient to hold defendant to answer on a Penal Code section 12022.5, subd.(a) firearm "use" allegation. The
evidence would support a lesser finding that defendant was "armed" with a firearm under section 12022, subd.(a).id: 19416
Trial court should strike findings rather than stay imposition of lesser firearm enhancements. The trial court imposed a firearm enhancement pursuant to Penal Code section 12022.53, subd. (d), and imposed but stayed firearm use e nhancements found true under sections 12022.5, subd.(a) and 12022.53, subds. (b) and (c). However, section 12022.53, subd.(f) provides that when multiple enhancements are found true, only the longest should be imposed. In this circumstance, the court should strike the findings rather than stay punishment for the lesser enhancements.id: 19405
Only one section 12022.53, subd.(d) enhancement term was proper where defendant committed a single offense of shooting at a vehicle occupied by two people.Defendant was convicted of shooting at an occupied vehicle under Penal Code section 246, and the jury found that as to both victims he personally and intentionally discharged a firearm within the meaning of section 12022.53, subd.(d). Pursuant to this finding under section 12022.53, the court imposed two consecutive terms of 25 years-to-life. However, defendant was only convicted of one qualifying crime under section 12022.53, subd.(f). That subdivision specifies only one additional term can be imposed "for each crime." Because defendant committed a
single qualifying offense only one 25 years-to-life term was proper under section 12022.53.id: 19378
After imposing the life term under section 12022.53, subd.(d), the remaining firearm enhancements should have been stricken not stayed.The trial court imposed the 25 years-to-life enhancement under Penal Code section 12022.53, subd.(d). The court thereafter stayed the other firearm enhancements found true under sections 12022.5, subd.(a)(1), and 12022.53, subds. (b) and (c). Pursuant to section 12022.53, subd.(f), the remaining enhancements should have been stricken and not stayed. Since the court imposed an
unauthorized sentence, the issue could be raised at the resentencing even though it had not been raised in the first appeal.id: 19253
In imposing firearm-use enhancements robberies are to be calculated by transaction rather than number of victims.The trial court erred in imposing Penal Code section 12022.5 enhancements for 14 counts since the court may impose only one enhancement for each robbery, calculating robberies by transaction rather than number of victims.id: 14084
Habitual offender sentence was not appropriate where there was no showing that the gun used in the proper robbery was loaded or used as a bludgeon.An abstract of conviction and related conviction documents showing only that defendant was convicted of robbery while personally using a firearm are not sufficient to demonstrate this prior robbery constituted the type of robbery contemplated in Penal Code section 667.7 which allows for a life term in prison without parole for 20 years. The bare fact of a conviction for robbery while personally using a firearm not shown to be loaded or used as bludgeon is not the same as robbery while using force or a deadly weapon.id: 14079
Weapon-use finding was improper where there was no evidence victim was aware of the knife.Evidence was insufficient to support the weapon use finding under former Penal Code section 12022.5, subdivision (b), where there was no evidence that victim was aware of the knife and no evidence that defendant made any threats which produced fear in the victim.id: 14104
Possession of two sawed-off shotguns at the same time is only one offense.Defendant's possession at the same time and place of two sawed-off shotguns did not constitute two separate violations of former Penal Code 12020, subdivision (a).id: 14093
Special finding of weapon use was improper where it was not in response to an allegation properly charged, was not authorized by statute, and was in response to an issue prematurely raised.The court erred in allowing the jury to determine the truth of the allegations that he personally used a deadly or dangerous weapon pursuant to the habitual offender provision of Penal Code section 667 and 1192.7. Since there was no allegation that he had suffered a prior serious felony conviction, the jury's finding of fact from which the court drew the legal conclusion that the offense was a serious felony operated solely on a prospective basis and was improper. The factual finding was stricken.id: 14096
Only three firearm use enhancements were proper where six crimes were based on three transactions.The kidnapping in count two was incidental to the attempted rape in count three, and the kidnappings for robbery in the remaining counts were incidental to one another. Each pair of crimes, committed on three separate dates, constituted one individisible course of conduct. As a result, only three use enhancements, one for each set of incidents, were proper under Penal Code section 12022.5, regardless of the number of findings by the jury.id: 14091
Enhancement imposed under section 12022, subdivision (b) was reversed where the jury was only instructed in the language of subdivision (a) of that section.Defendant was charged with personally armed enhancements pursuant to Penal Code section 12022, subdivision (b). The enhancements imposed under that provision were reversed because the jury was only instructed in the language of subdivision (a) of section 12022. The proper remedy was to impose a one-year enhancement pursuant to section 12022, subdivision (a), which requires only a finding that the defendant was armed.id: 14066
In order for a weapon use enhancement to attach to later sex offenses the People had to show appellant again used a gun when he reentered the bedroom and committed the subsequent offenses.Appellant raped victim in her bedroom while displaying a weapon. He then left the room and reentered after 15 minutes and raped her again. The second time she saw no weapon. The People argued that two weapon use findings were proper under Penal Code section 12022.3 because the gun use carries over to later offenses due to the fear engendered by its use during the first offense. However, in order for the weapon use to attach to the second offense, the People would have had to establish that appellant again used the weapon upon reentering the bedroom.id: 14085
Enhancement for being personally armed during a drug transaction cannot be based on a finding of vicarious liability.Defendant was convicted of selling narcotics and his sentence was enhanced pursuant to Penal Code section 12022, subd. (c), applicable to defendants who are personally armed during a drug transaction. However, the trial court erred in failing to instruct the jury that a defendant must be personally armed for purposes of section 12022, subd. (c), and the instruction actually given improperly permitted a jury finding of true based solely on vicarious liability. The error required reversal as to the enhancement allegations.id: 14063
Defendant was not personally armed with a firearm where an unloaded handgun was found in a closed suitcase across the room.Imposition of an enhancement under Penal Code section 12022, subd. (c), requires that defendant be personally armed with a firearm in the commission of one of the specified drug offenses. Evidence was insufficient to support the enhancement where the unloaded gun was found in a closed suitcase, with other belongings, across the room from defendant.id: 14057
Appellant who was armed with a pellet gun, was entitled to a reversal of the weapon use enhancement following the repeal of the provision defining a firearm.Appellant was entitled to reversal of the firearm use enhancement finding. Although the crimes underlying the robbery convictions occurred in 1990, Penal Code section 12001.1, operative at that time, has been repealed changing the legal definition of firearm so that it no longer includes pellet guns. Appellant, who admittedly used or was armed with a gas-pressured pellet gun, but whose case had not yet reached final disposition was entitled to the benefit in the change in definition.id: 14048
Instructions that did not apprise the jury of the necessity of determining whether defendant possessed all parts of the firearm required reversal of the enhancements.The instructions read to the jurors did not adequately apprise the jury of the necessity of determining whether defendant possessed the barrel assembly in addition to the receiver so as to comply with the recent legislative changes in the definition of firearm. Without such instructions, the jury could not have properly determined on this record whether defendant possessed and used a firearm for purposes of the Penal Code section 12022, sub. (a)(1) and 12022.5, subd. (a) enhancements. The true findings on the firearm enhancements were reversed.id: 14086
Since defendant's use of the deadly weapon was an element of the aggravated assault, the weapon use enhancement was stricken.A jury convicted defendant of assault by means of force likely to produce great bodily injury (Penal Code section 245, subd. (a)(1)) and found true the allegation he used a deadly weapon in the commission of the offense (section 12022, subd. (b)). In the abstract use of a deadly weapon is not an element of force likely to produce great bodily injury because the offense may be committed without using a deadly weapon. However, the instant defendant's stabbing of the victim with a knife constituted the assault by means of force likely to produce great bodily injury. Therefore, his use of the deadly weapon was an element of the offense, and the weapon use enhancement was stricken.id: 14095
Defendant's act of re-racking his pistol was not an aggravating factor justifying the five-year firearm use enhancement.Penal Code section 12022.5, subdivision (a) provides for a sentence enhancement of three, four or five years for personal use of a firearm in the commission of a felony. The court must impose the four year term in the absence of aggravating or mitigating factors. The court erred in imposing the aggravated term because the gun misfired and you had to re-rack. Defendant's act of re-racking his pistol to correct a misfire did not make his firearm use worse than the ordinary.id: 14060
Court erred in imposing more than one gun use enhancement since the case overruling In re Culbreth is to be applied prospectively only.The trial court imposed gun use enhancements under Penal Code section 12022.5 in connection with the kidnap for robbery and dissuading a witness counts. In<i> In re Culbreth</i> (1976) 17 Cal.3d 330, the court held only one gun use enhancement is proper if all charged offenses are incident to one objective. In <i>People v. King</i> (1993) 5 Cal.4th 59, the court overruled <i>Culbreth</i> and found that more than one gun use enhancement was permissible. However, <i>King</i> is to be applied prospectively only and the instant crime was committed before <i>King</i>. Moreover, since defendant had continuous possession of the gun for two hours and there was but one victim, there was but one firearm use.id: 14050
Enhancement for weapon use during sex crime cannot be applied vicariously.An enhancement pursuant to Penal Code section 12022.3 for using or being armed with a firearm or deadly weapon during the commission of certain sex crimes can be imposed only when the defendant personally uses or is armed with the weapon.id: 14065
Personal use of a firearm by a menacing display requires that such display be intentional.Penal Code section 12022.5, subdivision (a) specifies additional punishment for any person who uses a firearm in the commission or attempted commission of a felony. One of the ways a firearm can be used is to display it in a menacing manner. A defendant has personally used a firearm by a menacing display only if that display was intentional and a jury must be instructed accordingly.id: 14092
Defendant was not armed with a firearm during the sexual assaults where the gun was in the car a substantial distance away from the sex acts.Defendant was convicted of several sex offenses and kidnapping for the purpose of sex, and the jury found that he was armed with a firearm pursuant to Penal Code section 12022, subdivision (a)(1). However, the evidence was insufficient to establish defendant had the gun available for use during the sexual assaults which occurred at the tree, at the apartment building and at the motel room where the evidence demonstrated these particular crimes occurred a substantial distance away from the car containing the gun.id: 14056
Court had discretion to stay term for firearm use enhancement after the conviction of assault with a deadly weapon.Penal Code section 12022.5, subdivision (d) provides the trial court discretion to impose or not to impose the additional punishment for firearm use when such is an element of the offense of which a defendant is convicted. Because firearm use is an element of the crime for which defendant was convicted - assault with a deadly weapon under section 245 - the court did not err in exercising its discretion to stay the punishment for the firearm use enhancement in this case.id: 14051
Enhancement for causing the death of a motor vehicle occupant only applies to a defendant who personally discharges a firearm and whose firearm discharge causes the death or injury.Defendant's second degree murder convictions were enhanced pursuant to Penal Code section 12022.5, subdivision (b)(1) for causing the death of an occupant of a motor vehicle by discharging a firearm. However, the enhancement applies only to a defendant who personally discharges a firearm at an occupied motor vehicle, and whose firearm discharge causes great bodily injury or death. No evidence was presented as to which defendant fired the .380 caliber handgun. The judgment was modified to reflect the imposition of enhancements under section 12022.5, subdivision (a)(1), for personal use of a firearm, since the trial court initially thought enhancements were to be imposed under that section.id: 14064
Displaying a starter pistol during a robbery was insufficient to support the finding defendant used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b).The evidence was insufficient to support the jury's finding that the use of a starter pistol in the robbery constituted the use of a deadly and dangerous weapon within the meaning of Penal Code section 12022, subdivision (b). The starter pistol was never shown to be capable of being used as a firearm and no evidence was presented to show defendant intended to use it as a bludgeon. The prosecutor's comments that the starter pistol could inflict injury from the gases it emitted or could cause a heart attack from the noise generated were purely speculative.id: 14061
Trial court erred in imposing separate enhancements for use of a gun and a knife in the same offense.Defendant used both a knife and a handgun in the commission of the attempted robbery. The trial court erred in imposing two weapon use enhancements for the same offense. Penal Code section 1170.1 permits the sentence to be enhanced with only the firearm use allegation because it was the greater enhancement.id: 16252
The section 12022.53 enhancement was not proved against defendant where the codefendant was acknowledged to be the shooter and he was acquitted of the charges.Defendant was convicted of second degree murder and received an additional 25 years to life term under Penal Code section 12022.53. However, the codefendant, who all parties agreed was the shooter, was acquitted of the charged murder. The evidence was insufficient to support the enhancement allegation against defendant since the allegation requires proof of a conviction by the one who personally discharged the firearm.id: 15105
Court erred in failing to instruct that for a pillow to qualify as a deadly or dangerous weapon, the defendant must have intended to use it as such.The trial court erred in instructing on the deadly or dangerous weapon personal use allegations because it did not instruct sua sponte that defendant must have intended to use the pillow as a deadly or dangerous weapon. In fact, the defense argued the pillow was used to silence rather than suffocate the victim and the prosecutor argued such intent was irrelevant. Since a pillow is not an inherently dangerous weapon, it can only qualify where it is shown the defendant intended to use it as such. The instructional error was reversible under <i>Chapman</i> where the evidence of defendant's intent was conflicting and the prosecutor argued intent was irrelevant.id: 15103
15 year minimum term provision for a defendant who commits premeditated attempted murder in a gang case where a firearm is used only applies where defendant personally uses the firearm.Defendant was convicted of premeditated attempted murder. The jury also found the crime was committed to benefit a gang and that a principal personally discharged a firearm. There was no finding that defendant personally used a firearm. Defendant was not subject to the 15 year minimum term set forth in Penal Code section 196.22, subd.(b)(5) for attempted premeditated murder. Section 12022.53, subd.(e)(2) defines when a defendant in a gang related case where a firearm is used may be subject to the 15 year minimum parole eligibility date. Defendant was subject to the seven-year minimum parole eligibility date in section 3046, subd.(a)(1), since there was no finding that he personally used the firearm.id: 15100
Trial court erred in failing to define proximate causation when instructing on the section 12022.53, subd.(d) enhancement.The trial court instructed the jury as to the Penal Code section 12022.53, subd.(d), weapon use enhancement that defendant need intentionally and personally discharge the gun and proximately cause death or great bodily injury. The court erred in failing to define the proximate causation. However, the error was harmless where the jury could not have misunderstood the term "proximate cause" in a way that they would have prejudiced defendant, i.e., that would have resulted in a finding of proximate causation on an improper basis.id: 16868
The section 12022.53, subd.(b) enhancement for the two strike defendant was subject to the one-third limitation of section 1170.1.Defendant was convicted of attempted second degree robbery. His sentence was doubled under the three strikes law. The trial court thereafter erred in imposing the full 10 year term for the Penal Code section 12022.53, subd.(b) enhancement. The court should have imposed one-third of the 10 year term under section 1170.1 since the three strikes law's basic sentencing provisions for two strikes defendants incorporates the methodology of section 1170.1, and section 1170.11 command that the section 12022.53 enhancement is subject to the one-third limitation of section 1170.1.id: 16725
A defendant who has been sentenced to life without possibility of parole under the "drive-by murder" special circumstance is not subject to an additional 25 years-to-life under section 12022.53, subd.(d).Defendant was convicted of first degree murder with the "drive by" special circumstance under Penal Code section 190.2, subd. (a)(21). The trial court sentenced him to life without possibility of parole for that offense. In addition, the court imposed a consecutive term of 25 years-to-life based on the finding that defendant discharged a firearm causing death under section 12022.53, subd.(d). However, the enhancement was stricken on appeal because subdivision (j) of section 12022.53 precluded the trial court from adding the enhancement to a sentence of death or life without the possibility of parole under section 190.2, subd. (a)(21).id: 17246
Multiple section 12022.53 enhancements were improper where there was only one victim.Defendant argued the trial court erred in imposing one 25 years-to-life enhancement under Penal Code section 12022.53, subd.(d) for defendant's personal use of a firearm causing serious injury or death, and another 25 year enhancement under section 12022.53, subds. (d) and (e)(1) for defendant's vicarious liability for a principal's use of a firearm. He argued the imposition of both enhancements violates the section 12022.53, subd.(f) proscription against multiple enhancements as well as section 654. The prosecution argued the multiple punishment proscription does not apply to a "group shooting" where two crimes are committed - one by defendant, and the other by the accomplices. However, there can be no "group shooting" exception where there was only one victim.id: 18245
Only one section 12022.53, subd.(d) enhancement was proper where defendant fired one shot at a single victim but was convicted of three crimes.Defendant argued it was improper to impose punishment for three Penal Code section 12022.53, subd.(d) firearm enhancements based on his firing once at a single victim. The Attorney General argued that since there were three crimes (attempted murder, kidnapping for robbery, and kidnapping for carjacking) imposition of three firearm discharge enhancements was mandatory. However, there was only one victim and a single act of discharging a firearm. Defendant should only have been punished once. The other two enhancements were stayed.id: 18341
CALJIC 17.15 improperly directed the jury to find the section 12022 enhancement true without regard to whether there was a "facilitative nexus" between the gun and the drugs.By instructing that the "in the commission of the offense" element requires only that the arming occurred "at the time of the commission of the offense," CALJIC 17.15 permits the jury to find the Penal Code section 12022 arming enhancement true without regard to whether there was a "facilitative nexus" between the presence of the firearm and the underlying offense. The instructional issue was prejudicial where the defense theory at trial was that the gun was in the van because defendant was considering suicide, and there was no facilitative nexus between the drugs and the gun.id: 18819
Court erred in imposing the upper term on the enhancement where the stated reasons did not relate directly to the use of the firearm.The trial court considered improper factors in sentencing defendant to the upper term on the firearm use enhancement. The increasing seriousness of defendant's criminal activity and the fact that he was on probation at the time of the present injury for a prior criminal assault on the same victim do not relate directly to the conduct, i.e., shooting his girlfriend, which resulted in the enhancement. However, the error was harmless given the existence of one circumstance which could properly have been used to select the upper term for the enhancement and the absence of any mitigating factors.id: 13862
Trial court erred in failing to separately state reasons justifying the upper term on the firearm use enhancement.The trial court erred in failing to state reasons for its selection of the upper term for the firearm use enhancement. While the trial court did state its reasons for its choice of an aggravated term for the robbery count, it did not state its reasons for its enhancement choice as required under Penal Code section 12022.5, subdivision (a). Defense counsel's failure to object did not constitute a waiver of the issue. However, in light of all of the aggravating circumstances the court's error was not prejudicial.id: 13869
Use of the gun to aggravate the carjacking and enhance the sentence was improper.Defendants were sentenced to a nine-year upper term for carjacking, based solely on their use of a gun during the crime. Both received a 10-year term for their use of a firearm under Penal Code section 12022.53, subd.(b). This was an impermissible dual use of the facts. The issue was not waived for the lack of an objection where the record did not show defendants knew of the court's intended sentence and the probation report did not list use of the weapon as an aggravating circumstance. The matter was remanded for resentencing.id: 16764
Court prejudicially erred in failing to instruct on the elements of the deadly weapon use enhancement.Defendants were convicted of second degree robbery and deadly weapon use allegations (Penal Code section 12022, subd. (b)) were found to be true. The trial court erred in failing to instruct the jury, sua sponte, on the elements of the dangerous or deadly weapon use enhancements and that the provision requires that defendant personally use the deadly weapon. However, the jury was instructed on aiding and abetting, which would allow a positive finding on the enhancement based on a codefendant's use of the weapon. Consequently, it could not be said beyond a reasonable doubt that the jury's finding on the enhancement were not affected by the court's erroneous instruction. Imposition of the enhancements were reversed.id: 9855
Firearm use enhancement was improperly added to defendant's conviction of posssession of a short-barreled shotgun.Defendant was convicted of possession of a short-barreled shotgun under Penal Code section 12020, subdivision (a). The court added a three year enhancement under section 12022.5, subdivision (a) for use of the firearm in the commission of the crime as defendant used the weapon to strike the victim on the head. However, the enhancement did not apply as defendant's use of the weapon as a club in no way furthered the crime of possession.id: 10654
Updated 3/7/2024The trial court did not abuse its discretion by failing to address defendant’s individual culpability when denying his request to dismiss a gun use enhancement under SB 620.Defendant’s case was sent back for resentencing in light of SB 620 in order to allow the court to dismiss a gun use enhancement in the interest of justice. He argued the trial court erred in denying his request to dismiss the enhancement as it referred to the gang crime but failed to note the codefendant was primarily responsible for the incident. However, the court considered the relevant factors, and did not abuse its discretion in denying defendant’s request.id: 26295
Updated 3/7/2024Trial court’s correction of a sentencing error of an otherwise final case did not amount to a new sentencing hearing requiring it to use discretion under SB 620.In 2002, defendant was convicted of 13 counts of robbery and sentenced to 40 years in prison. The sentence included mandatory firearm enhancements. 15 years later, the CDCR sent a letter to the trial court calling attention to errors regarding the length of certain concurrent terms. Defendant argued this was a new sentencing hearing where the defendant could ask the court to consider striking the gun use enhancements under SB 620. However, this was not a new sentencing hearing for purposes of SB 620, and the trial court did not err by finding it was an unauthorized sentence, and correcting the abstract of judgment.id: 26303
Updated 3/7/2024The trial court lacked discretion to grant probation for a defendant who used a firearm to commit a robbery.Defendant committed a robbery while using a firearm. He argued the trial court erred by failing to grant him probation given that the law following SB 620 allows a court to strike a firearm enhancement, and grant probation. However, Penal Code section 1203.06 expressly prohibits a court from granting probation to a defendant who uses a gun to commit a robbery. The court also lacked authority to dismiss the robbery conviction in order to grant probation.id: 26348
Updated 3/7/2024The trial court lacked the discretion to substitute another firearm use enhancement in place of section 12022.53, subd. (d). Defendant was convicted of robbery along with a firearm use enhancement under Penal Code section 12022.53, subd. (d). He argued that, under SB 620, the trial court had discretion to substitute another enhancement in place of section 12022.53, subd. (d), and the denial of his request was erroneous becuase the court was not aware of its discretion. However, the trial court did not have the discretion to substitute another enhancement. id: 26354
Updated 3/4/2024Trial courts lack discretion to impose punishment under section 12022.5(a) in lieu of a section 12022.53 enhancement found true by the jury.The trial courts do not have discretion to substitute a Penal Code section 12022.53 enhancement with a section 12022.5(a) enhancement. That option is foreclosed by section 12022.53(j).id: 27608
Updated 3/4/2024Trial courts on remand do not have discretion to impose a lesser gun use enhancement.Defendant argued the term imposed for the gun discharge enhancement must be remanded to allow the court to exercise discretion to consider a lesser included enhancement. However, the amendments to Penal Code sections 1385 and 12022.53 (h) only confer upon the court discretion to dismiss a gun enhancement. There is no discretion to impose a lesser enhancement.id: 26848
Updated 2/26/2024Section 12022.53(h) does not authorize a court to impose a lesser firearm enhancement. Penal Code section 12022.53(h) authorizes a court to exercise discretion to strike or dismiss a firearm enhancement only. It does not authorize a court, in furtherance of justice, to impose a lesser firearm enhancement. That was never alleged nor found to be true.id: 27390
Updated 2/26/2024Court’s mistaken comment about parole eligibility when refusing to strike the gun enhancement was irrelevant.Defendant argued the trial court erred by commenting at sentencing that striking the gun allegation would not affect defendant’s parole eligibility date. However, while the court may have been wrong about the parole eligibility date, that was not the reason it refused to strike the gun enhancement. The court refused to strike the enhancement because the shotgun assassination was reprehensible and pensively deliberate.id: 26421
Updated 2/24/2024Remand was not required to allow the court to dismiss the five-year prior serious felony enhancement, but it was required to allow the court to dismiss the gun enhancement under SB 620.The trial court did not err by refusing to dismiss defendant’s five-year prior serious felony enhancement. Resentencing was not required where the court indicated at the original sentencing that it would not dismiss the prior even if it had the authority to do so. Resentencing was required to allow the court the opportunity to dismiss the firearm enhancement under SB 620 where the sentencing court made no statement about what it would do if it had discretion to dismiss the enhancement.id: 26600
Updated 2/24/2024Returning an otherwise-final case to the trial court to correct clerical errors in the abstract did not provide for the retroactive application of SB 620.A case manager for the CDCR informed the sentencing court of a clerical error in the abstract of judgment. Defendant’s case was final on appeal. SB 620, which gives trial courts discretion to dismiss firearm-related enhancements does not apply to cases final on appeal. Defendant argued that the court could address the issue in light of the fact that the case was coming before the sentencing court for the correction of clerical errors. However, the court’s actions in correcting the sentencing error did not allow for retroactive application of SB 620.id: 26617
Updated 2/24/2024Section 12022.53, as amended, does not provide a trial court with discretion to impose a lesser uncharged enhancement in the interest of justice.Defendant argued the trial court erred by rejecting his request to strike his firearm enhancement under Penal Code section 12022.53, subd. (h), and requested a remand to allow the trial court to exercise its discretion to impose a lesser, uncharged firearm enhancement. However, nothing in the plain language of sections 1385 or 12022.53, subd. (h) suggests an intent to allow a trial court discretion to substitute one sentence enhancement for another.id: 26621
Updated 2/22/2024The new law providing the court with discretion to dismiss firearm enhancements did not apply to cases that were final on appeal.SB 620, which gave trial courts discretion to dismiss certain firearm enhancements was retroactive as to all cases in which the judgment was not yet final at the time the law went into effect. However, contrary to defendant’s argument, the law did not apply to cases that were already final, and that interpretation did not violate any equal protection principles.id: 27098
Updated 2/7/2024The trial court lacked discretion to impose a lesser enhancement where the lesser enhancement was charged under section 12022.53 but found to be true.Defendant was charged with murder and the information also alleged firearm use enhancements under Penal Code section 12022.53, subds. (b), (c) and (d). The latter carried a 25 years-to-life term. Subdivisions (b) and (c) are lesser included enhancements of subdivision (d)) enhancement and the jury found that allegation to be true. Defendant argued at sentencing that under SB 620 the trial court had discretion to impose a lesser enhancement under subdivision (b) or (c) However, when a lesser enhancement was separately charged under section 12022.53 but was not determined to be true, the trial court lacks discretion to impose it upon striking a greater enhancement under the statute.id: 27169
Updated 2/4/2024Defendant used a gun in the course of a robbery for purposes of section 12022.53 (b) where he pointed to a gun in his pocket and said no harm would come to the victim if she did as he said.Defendant argued the evidence was insufficient to support the personal gun use enhancement because the robbery was complete before defendant displayed the gun in menacing fashion. However, defendant gestured and said he had a gun in his pocket, telling the victim nothing would happen to her or her baby if she did what he said. This suggested he might harm them with the gun if she refused. Defendant used a gun during the robbery for purposes of Penal Code section 12022.53.id: 27343
Updated 2/3/2024Under section 12022.53, subd. (h), the trial court does not have discretion to substitute a lesser firearm enhancement not found true by the jury.Penal Code section 12022.53, subd. (h), does not grant a trial court the discretion to substitute lesser included enhancements, at least where the greater enhancement is legally and factually valid.id: 26704
Updated 2/3/2024Under section 1385(c)(2)(c) added as part of SB 81, the trial court retains the ability to impose a gun enhancement where dismissing it could endanger public safety.Defendant argued that under Penal Code section 1385(c)(2)(c), enacted as part of SB 81, the trial court erred in failing to strike a firearm enhancement. Contrary to defendant’s claim, the court need not dismiss a firearm enhancement in every case where its application could result in a sentence in excess of 20 years. The current version of the statute allowed the court to impose the enhancement upon a finding that dismissing it would endanger public safety.id: 27672
Updated 2/3/2024Evidence supported the firearm enhancement finding where defendant and another man fired shots into the car where the victims were killed. Defendant argued there was insufficient evidence to support the true finding on the Penal Code section 12022.53(d) firearm use enhancement because the evidence showed that both he and his confederate fired shots into the car, but there was no way to determine which shot killed the victim. However, evidence supported the finding where both men fired shots, which set in motion the events that killed the two victims. id: 27753
Updated 2/3/2024SB 620 cannot be applied retroactively to cases that were final on appeal when the law became effective. The trial court properly denied defendant’s motion requesting resentencing unde SB 620 so that the court could exercise its discretion to dismiss a gun enhancement. The case was final on appeal in 2011, and the court therefore lacked jurisdiction to consider the merits.id: 26098
Updated 2/3/2024The trial court has discretion to impose a lesser uncharged firearm enhancement after striking the greater enhancement in the interest of justice.The trial court has the discretion to impose an uncharged lesser included firearm enhancement in lieu of the greater enhancement of conviction after the greater enhancement is stricken by the trial court in its exercise of discretion.id: 27576
Updated 2/1/2024The trial court did not abuse its discretion in refusing to dismiss the gun enhancement where defendant held a gun to his girlfriend's head.While defendant’s appeal was pending, SB 620 became effective, giving trial courts the option to dismiss gun enhancements. The trial court did not err by refusing to dismiss the enhancements and defendant’s case on remand. Defendant never acknowledged wrongdoing and the facts were aggravated as he drove his girlfriend to a remote location, held a gun to her head while demanding that she choose between him killing her or her father.id: 27990
Updated 2/1/2024The trial court erred in refusing to consider the DA's new policy when it denied the motion to strike the firearm enhancements.The Los Angeles District Attorney implemented a new policy calling for the dismissal under Penal Code section 1385 of certain enhancements. The trial court here denied the prosecution’s motion to dismiss the firearm enhancements, and refused to consider the new policy. The trial court misunderstood its discretion under section 1385 when it refused to consider the policy, as a trial court when deciding the issue must consider case-specific factors as well as general sentencing objectives. The matter was returned to the trial court to conduct a new hearing to reconsider the prosecutor's motion.id: 28007
Order denying post appeal motion to strike gun use enhancements was not appealable, and SB 620 does not apply to cases final on appeal. Defendant pled guilty to certain offenses and admitted firearm use allegations in 2016. He appealed the sentence and the remittitur was issued on November 16, 2017. He later filed a motion in the trial court to strike the gun enhancements and the motion was denied on January 8, 2018. He now claims the matter need be remanded under SB 620 to give the trial court to give the trial court discretion to dismiss the enhancements. However, the challenged order was not appealable because the trial court lacked jurisdiction to rule on the motion. Moreover, the new law does not apply to cases that are final on appeal.id: 26152
Defendant who agreed to a sentence for the gun enhancement in a negotiated plea had to obtain a certificate of probable cause to challenge the sentence under SB 620. A defendant who agrees to a specified sentence for a firearm enhancement under a negotiated plea is required to obtain a certificate of probable cause to challenge his sentence on appeal.id: 26176
Defendant challenging the section 12022 armed with a firearm enhancement was not entitled to an instruction highlighting defense evidence that he placed the gun nearby for reasons unrelated to the drug crime.In People v. Bland (1995) 10 Cal.4th 991, the court found a defendant may be considered to be armed with a gun while committing a drug crime if he knew a gun was present nearby, its proximity to the drugs was not accidental and the gun was available for use. Defendant was found to be armed with a gun during the transportation offense. However, contrary to the defendant's claim, he was not entitled to a sua sponte instruction highlighting defense evidence that he placed the gun near the drugs for a reason unrelated to the drug crime.id: 20261
The case was remanded for resentencing under SB 620 despite the state’s claim that remand would be futile.Defendant’s sentence included 25 years-to-life for personal use of a firearm causing death. Senate Bill 620 became effective in January of 2018 and allowed courts discretion to dismiss firearm-related enhancements. Defendant’s case was remanded to allow the court to exercise its discretion despite the Attorney General’s claim that it was unlikely the court would change the sentence.id: 25807
Senate Bills 620 and 1393, which became effective while defendant’s case was pending on appeal, provide the trial court with discretion to strike firearm and serious felony prior enhancements, and even though the court was unsympathetic to defendant at sentencing, remand was ordered to allow the court to exercise its discretion.Defendant was convicted of murder and the jurors found he had a prior serious felony conviction , and that he personally used a firearm in the killing. While his appeal was pending, the legislature enacted Penal Code section 12022.53, subd. (h), which gives trial courts discretion to dismiss firearm enhancements in the interest of justice. The legislature also passed SB 1393, which gives the trial courts discretion to dismiss five-year prior serious felony enhancements under section 667, subd. (a). The law applies retroactively to the defendant’s case. Even though the trial court made comments at sentencing suggesting a lack of sympathy for the defendant, the defense never had the opportunity to argue for dismissal of the firearm use enhancements, or his prior serious felony enhancement. The matter was remanded for sentencing out of an abundance of caution.id: 26059
The amended section 12022.53 (h) does not apply to an insanity acquittee.The recent amendment to Penal Code section 12022.53,, subd. (h), giving trial courts discretion to dismiss a firearm enhancement does not apply retroactively to a person whose case is not yet final because he was committed to a state hospital after being found not guilty by reason of insanity.id: 25987
The matter was remanded to the trial court to exercise its discretion to dismiss a gun use enhancement following SB 620 where the record did not clearly indicate the court would not have reduced the sentence had it known it could do so.Defendant was convicted of first degree murder and other offenses, and enhancements. The court imposed a 137 years-to-life term that included 25 years-to-life for a Penal Code section 12022.53, subd.(d) gun use enhancement. The legislature later enacted SB 620 which gave trial courts discretion to strike a gun use enhancement. The Attorney General argued the matter need not be remanded to the trial court for consideration of SB 620 because the record showed the trial court would not have exercised its discretion to dismiss the enhancement. However, the record did not reveal a clear indication that the trial court would not have reduced the sentence. The matter was remanded so that the trial court could exercise its discretion.id: 25760
No remand was required following SB 620, where the trial court made clear it would not have dismissed the firearm enhancement even if it had the power to do so.Defendant sought remand for reconsideration of his firearm enhancement pursuant to Senate Bill No. 620, which gave trial courts the authority to dismiss firearm enhancements. However, the trial court’s comments at sentencing unequivocally indicated the court would not have exercised its discretion to dismiss the enhancement even if it could, and so the remand request was denied.id: 25704
Remand for resentencing under SB 620 was not required in cold-blooded gang murder case where there was no reasonable chance the trial court would dismiss a firearm enhancement. New Senate Bill 620, giving trial courts the discretion to dismiss firearm related enhancements, applied to defendant’s case, which was not final on appeal at the time the new law became effective. However, remand for resentencing was not required where there was no reasonable probability the trial court would reduce the sentence.id: 25559
SB 620, which gives trial court’s discretion to strike firearm enhancements, applies to cases not final on appeal at the time the law became effective. On January 1, 2018, Penal Code section 12022.53, subd.(h), became effective. The law (introduced as SB 620) provided trial courts with discretion to strike firearm enhancements. The provision applied to defendant’s case, which was not final at the time the subdivision became effective. The matter was remanded to allow the trial court discretion to strike the firearm enhancement.id: 25489
Defendant had notice of the personal firearm discharge allegation given the pleadings and the evidence produced at the preliminary hearing and at trial. The jury found true an allegation that defendant personally discharged a firearm in violation of Penal Code section 12022.53, subd.(c). Defendant argued the court must strike the finding because the allegation wasn’t pled in the information. However, defendant had adequate notice of the allegation given the pleadings, the preliminary hearing and the evidence adduced at trial suggesting defendant was the only person who would have personally discharged a firearm.id: 25396
The trial court properly instructed the jury not to consider evidence of voluntary intoxication in determining the truth of the firearm use enhancement.The trial court did not err by instructing the jury that it could not consider evidence of defendant’s voluntary intoxication in determining whether he personally and intentionally discharged a firearm causing bodily injury or death within the meaning of Penal Code section 12022.53, subds.( c) and (d). Contrary to defendant’s claim, the provision does not include a specific intent.id: 24662
The trial court did not err by imposing a full term for the second attempted murder count because the DSL did not apply in light of the life term for the gun use enhancement. Defendant was convicted of two counts of attempted murder with no finding of premeditation. He argued that he should have been sentenced on the second count to one-third the base term. However, there was also a 25 years-to-life enhancement for the use of a firearm. The Determinate Sentencing Law does not apply where there is any indeterminate term. Therefore, the court did not err by imposing the full seven year middle term sentence for the attempted murder in count two. id: 21487
Court did not err in imposing a three year enhancement under section 12022.5, subd.(a) rather than the 10 year term under section 12022.53, subd.(b) as described in the plea bargain where the court found the latter to be cruel and unusual.Defendant pled no contest to second degree robbery, and admitted use of a firearm under Penal Code section 12022.53, subd.(b). The court found imposition of the ten year enhancement would be cruel and unusual punishment. Instead, it imposed a three year enhancement under section 12022.5, subd.(a) and a total prison term of five years. The plea bargain provided for a term of anywhere between two and 12 years. Any term less than 12 years would necessarily entail the enhancement under section 12022.5, subd.(a) which was also alleged. The trial court properly imposed the enhancement under section 12022.5, subd.(a) Moreover, the court did not err in finding the 10 year term under section 12022.53, subd.(b) would be "cruel and unusual," where the defendant was an immature 18 year-old who was not criminally oriented and had excellent prospects and no prior record.id: 16632
The trial court did not err by imposing the section 12022.5 enhancement following the voluntary manslaughter conviction.Defendant was convicted of voluntary manslaughter, and found true the allegation that he personally used a firearm pursuant to Penal Code section 12022.53, subd.(d). But section 12022.53 does not apply to voluntary manslaughter as that offense is not on the enumerated list of applicable offenses. The trial court did not thereafter err by imposing the section 12022.5 enhancement even though it had not been alleged in the information because that provision is a lesser included provision that would apply in any case where the section 12022.53 enhancement applies.id: 23820
The juvenile court did not err by allowing the prosecutor to amend the delinquency petition to change the gun enhancement section during closing arguments. The juvenile court did not err by allowing the prosecutor to amend the delinquency petition during closing arguments to allege an arming enhancement under Penal Code section 12022, subd.(a). The personal use of a deadly weapon enhancement under section 12022, subd.(b) was already charged. Because that charge referred to a handgun, the section 12022, subd.(a) enhancement was a lesser included offense, and defendant had adequate notice and opportunity to defend against the allegation.id: 23969
Defendant who sets a trap using a rigged firearm which is fired when he is not present has personally used a firearm for purposes of section 12022.53. Defendant tried to kill a detective whose testimony was necessary to convict him of a pending charge. His use of a zip gun booby trap qualified as personal use of a firearm for purposes of the Penal Code section 12022.53 enhancement. id: 23522
The personal use of a dangerous weapon enhancement described in section 12022, subd.(b)(2) operates as a implied exception to section 654. Defendant was sentenced to five years for carjacking along with a consecutive one year term for personal use of a dangerous or deadly weapon. He claimed the single act of driving at the victim with the stolen car established the force or fear element of carjacking, and was the basis for the sentence enhancement. However, section 654 does not bar imposition of sentence on the section 12022, subd.(b)(2) enhancement because the latter operates as an implied exception to the former. Morever, section 654 does not bar imposition of the enhancement that punishes an aspect of the offense that is not always present in the crime of carjacking.id: 23113
The trial court did not err in imposing both the gang and gun use enhancements for the violent felony where the gang enhancement was also supported by the GBI finding.Defendant was convicted of attempted voluntary manslaughter and his sentence was enhanced under both Penal Code sections 186.22, subd.(b)(1)(C) for promoting gang activity and section 12022.5, subd.(a) for firearm use. He argued the court erred by imposing both enhancements because section 1170.1 allows only the one enhancement where gun use provides the basis for more than one. However, the gang enhancement here was also supported by the great bodily injury finding and, therefore the imposition of both enhancements was proper.id: 23109
Defendant, as a convicted aider and abettor of the attempted murder under the natural and probable consequences doctrine, is a “principal” under section 12022.53, subd.(e). Defendant argued that his 25 years-to-life enhancement under Penal Code section 12022.53, subd.(e) must be reversed because the jury may have found him only vicariously liable for the qualifying offense of attempted murder under the natural and probable consequences doctrine, and therefore he could not be deemed a principal in that offense. However, the term “principal” in section 12022.53. subd.(e) includes aiders and abettors under the natural and probable consequence doctrine.id: 23059
Evidence established firearm use rather than merely being armed enhancement where defendant held a gun at his side during the robbery.Defendant confronted Davis at 1:45 a.m while she was alone outside of her car. He had a gun by his side which she could see. The display, along with his menacing tone of voice intimidated her. Whether defendant’s conduct amounted to firearm use for purposes of personal use of a firearm of a firearm during a robbery (Penal Code section 12022.53, subd.(b)) or merely being armed with a firearm (section 12022, subd.(a)(1)) was an issue for the jury. Substantial evidence supported both results.id: 22017
That the jury rejected the firearm use allegations did not require reversal of the substantive counts that were otherwise supported by substantial evidence.Defendant argued that because the jury found “not true” the gun use enhancement allegations it necessarily found he committed the murder, robbery and assault as an aider and abettor and the evidence did not support that theory. However, inconsistent verdicts do not require reversal if the convictions are supported by evidence. Evidence supported the convictions where defendant was identified as the shooter. There was also substantial evidence of aiding and abetting since firearm use by a gang member is a natural and probable consequence of firearm possession. And while defendant said he was unaware of the presence of the shotgun, the police saw various items thrown from the car during the pursuit, and the shotgun was found among the discarded items.id: 22030
By using the shotgun to embolden codefendant to fire a rifle, defendant personally used a firearm for purposes of section 12022.53, subd.(b).Defendant pointed a shotgun through the same window that Ramirez used to fire a rifle, and pulled the trigger so that the shotgun made a sound to make sure the victim heard a click. The evidence was sufficient to support the Penal Code section 12022.53, subd.(b) personal firearm use enhancement even if the victim never saw the gun because defendant emboldened Ramirez to shoot and therefore used the gun to facilitate the commission of the crimes.id: 22568
Penal Code section 1170.1 allows the imposition of both a firearm use and a GBI enhancement.Defendant was convicted of assault with a firearm along with two sentence enhancements - personal use of a firearm and personal infliction of great bodily injury. While the prohibition against multiple punishment for a single act set forth in Penal Code section 654 applies generally to sentence enhancements, section 1170.1 subds. (f) and (g), specifically permits the imposition of enhancements for both using a firearm and inflicting great bodily injury.id: 22531
Evidence that defendant brandished and fired a weapon supported the firearm use enhancements.Defendant argued there was insufficient evidence to support his conviction of assault with a firearm and the personal use of a firearm enhancements. He claimed the evidence did not establish that the object he brandished was a “firearm” as opposed to a replica or toy gun. However, defendant cocked the gun in a manner that prepares a semiautomatic weapon for firing. The victim also heard defendant fire three shots. The evidence established defendant’s use of a firearm.id: 22188
Evidence supported the finding that the stun gun qualified as a deadly weapon. Defendant used a stun gun during the rape of three victims and the finding of a deadly or dangerous weapon use led to life terms under the one strike law. Evidence supported the expert’s testimony that the stun gun qualified as a deadly or dangerous weapon.id: 22143
Evidence supported the personal gun use enhancement even where the prosecutor incorrectly argued it did not matter which defendant used a gun.Defendant argued the evidence was insufficient to support the Penal Code section 12022.53, subd.(b) allegation that he personally used a firearm during the robberies. While the prosecutor proceeded on an incorrect legal theory by urging the jury to find the allegation true, no matter who actually used the firearm, the record shows the jury relied on the correct legal theory in reaching its verdict, and it was properly instructed on the need to find personal use. id: 21798
Rejecting the personal gun use allegation did not mean the jurors convicted defendant of murder on an aiding and abetting theory. Defendant argued that because the jurors rejected as untrue the personal gun use allegation, it must have found him guilty of first degree murder as an aider and abettor and the evidence did not support a conviction under that theory. However, the evidence showed defendant and the codefendant were coperpetrators in the robbery and felony even though it may not have definitively showed which was the actual shooter. And by providing the gun, defendant assisted the robbery in a way that supported the conviction. Moreover, the “split verdict” did not show the jury relied on the aiding and abetting theory and may have just shown uncertainty of the role each defendant played.id: 21597
The 25 years-to-life term for the section 12022.53, subd.(d) enhancement is not subject to the one-third the base limitation of section 1170.1.Defendant was convicted of several counts including shooting at Magana from a vehicle. The jury also found he discharged a weapon within the meaning of Penal Code section 12022.53, subd.(d). The court later imposed a 25 years-to-life term for the enhancement. Defendant argued the minimum parole eligibility period for the enhancement must be limited to one-third of the term or eight years and four months to life. However, the section 1170.1, subd.(a) limitation does not apply to indeterminate sentences and the court must impose the full 25 years-to-life term for the enhancement.id: 21304
Defendant who shoots at an inhabited dwelling to benefit a criminal street gang is subject to a life term thus triggering application of the section 12022.53 subd.(c) enhancement. A violation of Penal Code section 246 (shooting at an inhabited dwelling) by its self carries a maximum prison term of seven years. But when, as in this case, the crime is committed to benefit a criminal street gang, the provision that comes into play is section 186.22, subd..,(b)(4) which calls for a term of life imprisonment with a minimum parole eligibility of 15 years. Under the circumstances, the defendant committed a felony punishable by life imprisonment, thus triggering application of the 20 year sentence enhancement under section 12022.53, subd.(c).id: 21246
The phrase “another enhancement” in section 12022.53, subd.(j) does not apply to a combination of enhancements and therefore the trial court was required to impose the 10 year gun use enhancement.Defendant argued the trial court was obliged to impose a 10 year enhancement for firearm use under Penal Code section 12022.53, subds.(b) and (e), rather than the 10 year gang enhancement under section 186.22, subd.(b)(1)(c), and thus the additional year for the section 12022, subd.(a)(1) had to be stayed or stricken. The term “another enhancement” in section 12022.53, subd.(j) does not apply to a combination of enhancements. The statute therefore required imposition of the 10 year gun use enhancement, and impose and stay the one year armed principal enhancement.id: 20597
After the court imposed the section 12022.53, subd.(d) firearm use enhancement, the other enhancement under section 12022.5, subd.(a) should have been imposed and stayed.Defendant argued that since the trial court imposed one firearm use enhancement (under Penal Code section 12022.53, subd.(d)), the additional section 12022.5, subd.(a) enhancement should have been stricken. However, in People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Court recently determined that in that circumstance the latter enhancement should have been imposed but stayed.id: 20596
Even though the victims wavered at trial, apparently afraid of defendant, their earlier consistent identification of defendant as the gunman in the car jacking supported the firearm use enhancement.Defendant argued the evidence was insufficient to support the finding that he used a firearm in the carjacking for purposes of the Penal Code section 12022.53 enhancement. Although the victims changed their attribution of the gun use at trial, after experiencing fear about implicating defendant, their earlier consistent out-of-court identifications constituted substantial evidence to support the allegation. id: 20882
The trial court properly imposed two enhancements under the 10-20-life law, one for each victim.Defendant was convicted of murder and attempted murder, and received two 25 years to life terms for the firearm use on these offenses under Penal Code section 12022.53, subd.(f), the "10-20-life" law. He argued only a single enhancement was authorized under the statute. However, the court properly imposed one enhancement for each victim.id: 15106
The firearm use enhancements were proper where defendant displayed the gun initially even though others had it at a different location during the two rapes.Defendant argued the Penal Code section 12022.5 firearm use enhancement could not be applied to the rape convictions because the evidence showed that while defendant possessed the gun at some point, he had given it to others who were in a different location at the time of the two rapes. However, the jury could reasonably have found the control and fear created by defendant’s initial firearm display continued throughout the encounter.id: 20463
Once the trial court imposes the section 12022.53 enhancement term, the terms for the remaining firearm enhancements must be stayed.Defendant was convicted of attempted murder along with personal firearm use findings under Penal Code sections 12022.5 and 12022.53. Defendant argued that after imposition of the latter enhancement, the former should be stricken. However, section 12022.53 requires that after imposing punishment under that provision, the remaining section 12022.53 and 12022.5 enhancements should be stayed.id: 20423
Evidence supported the section 12022.53, sub.(d) enhancement where defendants fired shots at a car that collided with another resulting in the death of a passenger. Defendants fired shots at a car driven by Covington. Covington accelerated into traffic causing an accident that killed a child in another car. Defendants argued the evidence was insufficient to support the Penal Code section 12022.53, subd.(d) enhancements which were attached to the murder and shooting at an occupied vehicle counts. However, the evidence was sufficient because the collision that caused the boy’s death was a foreseeable consequence of the shooting. id: 20422
Trial court was not required to instruct that for personal gun use enhancement, the defendant must subjectively intend to use the gun to commit the crime. Defendant was convicted of felony false imprisonment along with a finding that he personally used a firearm within the meaning of Penal Code section 12022.5, subd.(a). He argued the trial court erred in failing to instruct that a gun is not used “in the commission of a crime” unless the user specifically intends to use the gun to commit the crime. However, the issue is not one of the gun user’s subjective mental state but of the objective role the gun played in the offense. Moreover, the court was not required to define the phrase “displays the firearm in a menacing manner” because the term does not have a peculiar legal meaning.id: 20428
Defendant personally used the firearm for purposes of section 12022.5, subd.(a) where he held the gun between himself and the victim during the false imprisonment.Defendant argued that there was insufficient evidence to show that he personally used a firearm during the false imprisonment of the victim for purposes of the Penal Code section 12022.5, subd.(a) enhancement. However, defendant prominently displayed the gun by holding it between him and the victim during the incident. His use of the gun was not a mere passive display.id: 20427
Instruction that the word "firearm" includes handgun did not amount to a directed verdict.Defendant was convicted of robbery and was found to have personally used a firearm within the meaning of Penal Code section 12022.5, subdivision (a). He argued the court's instruction that the word firearm includes handgun violated due process by removing a necessary element of the use clause from the jury's consideration. However, the court did not instruct that a particular element had been established it merely instructed that the legal definition of a firearm included a handgun. Defendant also claimed the jury should have been instructed on the definition of a firearm pursuant to Penal Code section 12001, subdivision (b). However, where as here, the gun appears to be a traditional firearm there is no need for a more expansive definition.id: 13211
10-20-life firearm use enhancement is rationally related to legislative intent and supports state interest of citizen safety and deterrence of violent crime.Defendant argued that the 10-20-life enhancement under Penal Code section 12022.53 violates due process and equal protection principles. Defendant claimed the law does not rationally serve a legitimate state interest because it results in unreasonable disparate punishment of the same offenders whose only difference is their deadly weapon of choice. However, the statute is rationally related to the intent offered by the Legislature and supports legitimate state interests of citizen safety and deterrence of violent crime.id: 15099
The court erred in holding a section 12022.53, subd.(d) enhancement, which requires great bodily injury, could only be imposed once under section 654 where defendant shot at five people but injured only one.Imposing multiple Penal Code section 12022.53, subd.(d) enhancements was proper where a defendant fired two shots at a group of five people but hit and injured only one. When each offense is against a different victim, section 654 does not preclude imposing a subdivision (d) enhancement as to each offense. The matter was remanded for resentencing to allow the trial court discretion to impose multiple subdivision (d) enhancements.id: 18081
The trial court had discretion to strike punishment for the section 12022, subd.(b) deadly weapon enhancements.The trial court erred in concluding it lacked discretion to strike the deadly weapon enhancement under Penal Code section 12022, subd.(b)(1). It had discretion to do so under section 1385.id: 20010
Imposition of the firearm use enhancements and the gang enhancement based on firearm use violated section 654.Defendant was convicted of three counts of assault with a firearm, after he fired upon three victims in a single incident. As to each count the court imposed a four year, Penal Code section 12022.5 firearm use enhancement. The court also composed a 10 year gang enhancement under section 186.22, subd.(b), because the case involved a violent felony based upon firearm use under section 667.5, subd.(c)(8). However, imposition of two enhancements based upon the same firearm use violated section 654's prohibition against multiple punishments. Imposition of the section 12022.4 enhancement was stayed.id: 19962
The trial court erred by failing to strike the section 12022.7, subd.(e) GBI enhancement after imposing the life term under section 12022.53, subd.(d).Defendant argued the trial court erred in imposing and staying rather than striking various sentence enhancements. After imposing the 25 years-to-life term for the Penal Code section 12022.53, subd.(a) enhancement the court correctly imposed and stayed the section 12022.53, subd.(b) and (c) enhancements. However, the court erred in failing to strike the great bodily injury enhancement under section 12022.7, subd.(e).id: 19971
Merger doctrine did not prohibit punishment for the section 12022.53 firearm use enhancement in addition to the murder sentence.Defendant argued the merger doctrine prevented the imposition of a consecutive 20 years-to-life for the Penal Code section 12022, subd.(c) enhancement in addition to the term for the murder. However, section 12022.53, subd.(c) describes an exception to section 654. Moreover, defendant was not punished for the same act. The term for the murder was imposed for the killing while the enhancement punished the method chosen for the killing.id: 19884
The trial court properly stayed the lesser enhancements after the jury found true enhancements under subdivisions (b) and (c) of section 12022.53.The jury found Penal Code section 12022.53, subd. (b) and (c) enhancements as to counts one and two. Defendant argued the lesser enhancements should have been stricken, but the trial court properly stayed the subdivision (b) enhancements instead.id: 19885
Penal Code section 654 does not limit section 12022.53 firearm use enhancements.Penal Code section 12022.53 prescribes substantial sentence enhancements for using a firearm in the commission of certain felonies. Here, the enhancements were imposed under subdivision (d) based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. Penal Code section 654 did not preclude separate punishment for each offense. Under the plain language of section 12022.53, imposition of punishment for each enhancement is required.id: 19737
The weapon use enhancement was properly imposed where the victim was a dog rather than a human being.Defendant was convicted of animal cruelty in violation of
Penal Code section 597, subd.(a). The trial court did not improperly impose a Penal Code section 12022, subd.(b)(1) weapon use enhancement. Contrary to defendant's claim, the enhancement can be imposed where the knife was used to kill a dog rather than a human being. Moreover, weapon use was not an element of animal cruelty.id: 19576
Section 654 did not prevent imposition of section 12022.53, subd.(b) enhancements for attempted murder and attempted robbery where both arose from a single shot. Defendant argued the imposition of Penal Code section 12022.53 firearm use enhancements on both his convictions for attempted murder and attempted robbery violated section 654 because both enhancements arose from the same discharge of his firearm. Evidence supported the court's finding that the display of the gun occurred with the objective of committing the robbery, and the discharge of the gun was a means of killing the victim. The trial court properly stayed under section 12022.53, subd. (c) and (d) enhancements, and properly imposed the section 12022.53, subd.(b) enhancement as to the attempted robbery conviction.id: 19505
A defendant who pulls the trigger has discharged the weapon under section 12022.53, subd.(c) even where the gun misfires and does not emit a bullet. Defendant argued the evidence was insufficient to support the firearm use enhancement under Penal Code section 12022.53, subd.(c). He claimed that while he pulled the trigger, the gun misfired and never emitted a bullet which means he did not discharge the weapon for purposes of the enhancement provision. However, a person who aims a gun and pulls its trigger, thereby causing an explosion in the firing chamber, has "discharged" the gun within the meaning of subdivision (c).id: 19322
Evidence supported the weapon use enhancement despite defendant's claim that the deep cuts to the victim's face were caused by the sharp edge of a glove. Defendant argued the evidence did not support the weapon use enhancement under Penal Code section 12022, subd.(b)(1) because there was no evidence that he used a weapon, and the serious injuries to the victim's face may have come from a sharp or ribbed edge of the gloves he was wearing. However, police believed the deep cuts were caused by a box cutter or knife. The evidence supported the enhancement.id: 19296
Remand was proper to allow the court to impose the firearm use enhancement on the correct count.The trial court erroneously imposed the Penal Code section 12022.53, subd.(b) enhancement on the assault count rather than the attempted murder even though both counts were based on a single act. Since defendant was on notice of a firearm use enhancement there can be no due process violation in remanding the matter to impose the enhancement on the correct count.id: 19162
A 25 years-to-life gun use enhancement under section 12022.53, subd.(d) can be applied to an LWOP sentence.A 25 years-to-life sentence enhancement under Penal Code section 12022.53, subd.(d) can be imposed notwithstanding the circumstance that defendant's sentence for the underlying felony is life imprisonment without the possibility of parole. id: 18972
Firing the gun after the first threat was made and two hours before the robbery victim turned over the money supported the gun use enhancement.Evidence supported the robbery conviction where the victim gave defendant the money two hours after defendant fired the threatening shots. (174) Defendant asked his friend to give him money and his friend refused. During the next four hours defendant threatened to kill his friend and fired shots outside the store where his friend worked. Two hours after the shots were fired, defendant came to the store and demanded money but did not show the gun. His friend gave him the money. Under the circumstances, defendant committed a robbery as the evidence showed the victim was frightened when he gave defendant the money.id: 18968
Evidence of soft tissue injuries supported the section 12022.7 and 12022.53(d) great bodily injury enhancements.Defendant argued the evidence was insufficient to support the great bodily injury enhancements under Penal Code sections 12022.7 and 12022.53(d), where the victim suffered only soft tissue injury following the shooting. However, the evidence supported the imposition of the enhancements where aside, from the pain he suffered, defendant was unable to walk, sit or stand unassisted for weeks after the shooting.id: 18937
The trial court properly imposed a one year section 12022, subd.(b) enhancement for use of a deadly weapon, and imposed but stayed an additional enhancement for use of a second weapon.The prosecution alleged that defendant personally used two deadly or dangerous weapons (a knife and steel-toed boots) as separate Penal Code section 12022, subd.(b) enhancements. The defendant argued two identical enhancements under section 12022, subd.(b) cannot be imposed on the same offense against the same victim. However, the trial court properly imposed both enhancements, but stayed execution of one of them.id: 18888
The court applied the rational basis test in rejecting the equal protection claim - complaining that under section 12022.53 aiders and abettors of gang related murders are punished more severely than aiders and abettors of murders committed to benefit other dangerous groups.Under Penal Code section 12022.53, subds. (d) and (e)(1), an aider and abettor who is found guilty of murder is subject to a 25 years-to-life enhancement if the crime was committed for the benefit of a street gang. Defendant argued the provision violates equal protection principles because it punishes aiders and abettors of crimes committed for the benefit of street gangs more severely than aiders and abettors of crimes committed for the benefit of other such groups including hate groups or terrorists. First, the rational basis test applied since the question was not whether to deprive defendant of his liberty, but for how long. Next, the Legislature had a rational basis for imposing the increased term on a person who aided and abetted a gang related murder where the perpetrator used a gun.id: 18827
The section 12022.53, subd.(d) enhancement applied where the victim's injury was a broken ankle suffered when he attempted to avoid being shot.The Penal Code section 12022.53, subd.(d) enhancement for discharging a firearm, proximately causing injury, was satisfied even though the injury was not a bullet wound but a broken ankle resulting from the victim's evasive action as he dove behind the patrol car after the shot was fired. The provision encompasses any injury, not just bullet wounds, when the defendant's discharge of a firearm was the proximate cause of the injury. Moreover, in the present case, the evidence showed the victim dove in response to the shooting rather than the distinct act of pointing the gun. Finally, CALJIC 17.19.5 adequately advised the jury regarding the required proximate cause.
id: 18814
The evidence supported the section 12022. subd.(c) enhancement where the guns were located in defendant's bedroom a substantial distance from the meth lab.Defendant argued the evidence was insufficient to support the Penal Code section 12022, subd.(c) enhancement alleging that he was armed while manufacturing methamphetamine because the guns were found in his home, a good distance from the place he was detained, and from the meth lab. However, because the guns were in defendant's bedroom along with a significant sum of money, and in close proximity to cars used to store lab equipment and raw materials, the guns were available for use in the manufacturing process.id: 18782
A BB gun is a dangerous weapon as a matter of law for purposes of section 12022, subd.(b).Defendant argued there was insufficient evidence to support the finding that the particular BB gun he used was a deadly or dangerous weapon within the meaning of Penal Code section 12022, subd.(b). However, a pellet gun is a dangerous weapon as a matter of law because it is designed to expel a metal projectile at a target.id: 18677
The section 12022.53, subd.(d) enhancement was properly imposed even though section 190.2, subd.(a)(21) provides a longer term of imprisonment - life without possibility of parole.Defendant argued the consecutive sentence imposed pursuant to Penal Code section 12022.53, subd.(d) for the murder must be stricken because it is subsumed within the greater sentence imposed under section 190.2, subd.(a)(21). However, subdivision (j) of section 12022.53 does not preclude imposition of the enhancement unless an even greater enhancement-related punishment is available.id: 18659
Section 12022.53, subd.(j) did not preclude imposition of enhancements under that section to defendant's robbery counts even though he was sentenced under option (iii) of the three strikes law.Defendant argued optioned (iii) of the three strikes law provides a greater penalty than under sections 12022.53, subds. (c) and (d), thereby precluding the sentencing court from separately adding these count-specific enhancements on to the final option (iii) calculation in determining his sentence under the three strikes law. However, the "other provision of law" language in section 12022.53, subd.(j) (requiring that enhancements under this provision of law be applied unless another provision provides a greater penalty) must be construed to apply to enhancements other than Penal Code section 667, subd.(e)(2)(A) or section 1170.12, subd.(e)(2)(A). The court properly imposed the section 12022.53 enhancements to defendant's option (iii) three strikes sentence.id: 17971
The trial court did not err in imposing one-third of the upper term on the subordinate gun-use enhancement.Defendant argued the trial court erred as a matter of law in calculating the sentence for the gun-use enhancement related to the subordinate robbery count. As part of the subordinate term the court imposed one-third the upper term of 10 years for the related gun use enhancement. Defendant argued that under Penal Code section 1170.1, subd.(a), the trial court was required to use the middle term of four years. However, the court was not so limited. It had the discretion to use any of the enhancement's terms (upper, middle or lower) in calculating the subordinate term.
id: 17901
Penal Code section 12022.53 allows imposition of more than one 25 years-to-life term for a single injury caused by use of a firearm.Defendant fired two shots at a group of five people, but hit and injured only one. The Court of Appeal held that even where the defendant was convicted of five counts of attempted premeditated murder - one for each person in the group - because only one person was injured, Penal Code section 654 permits only one section 12022.53, subd.(d) enhancement, although subdivision (c) enhancements may be proper for the other counts. However, section 12022.53 calls for imposition of multiple subdivision (d) enhancements (one each for counts one and five), and section 654 does not prohibit that result.id: 17844
Use of pepper spray during a robbery supported the allegations of personal use of a dangerous or deadly weapon.Defendant was convicted of several counts of robbery. As to three of the counts it was determined that he used a substance believed to be pepper spray on the robbery victims. He argued the evidence did not support the findings that he used a noxious or caustic chemical spray as a dangerous or deadly weapon within the meaning of the Penal Code section 12022, subd.(b) enhancement. However, the victims suffered substantial, though transitory, respiratory distress, burning sensations or blindness. The chemical spray was capable of and did inflict serious bodily injury.id: 17813
A 25 years-to-life term under the section 12022.53 enhancement must be applied even to a defendant serving a term of life without possibility of parole.Defendant argued his 25 years-to-life enhancement under Penal Code section 12022.53 must be stricken because it was subsumed within his greater sentence of life without the possibility of parole. However, the claim was contrary to the language and spirit of the enhancement provision.id: 17648
Failure to plead the section 12022.53 enhancement as to each count on which the prosecution sought to have it imposed was not fatal.The requirement of Penal Code section 12022.53, subd.(i) that the existence of any fact required (under subd.(d)) "shall be alleged in the information "does not require the allegation of the enhancement be included in each count to which the prosecution seeks to have it imposed. While the better practice is to allege the enhancement with respect to every count on which the prosecution seeks to invoke it, the failure to do so is not fatal as long as the defendant has fair notice of his potential punishment.id: 17597
Neither the merger doctrine nor section 654 precluded imposition of the section 12022.53, subd.(d) firearm enhancement.Defendant argued that because the elements of the offense for establishing premeditated and deliberate first degree murder necessarily included an intent to kill, enhanced punishment under Penal Code section 12022.53, subd.(d), which requires the discharge of a firearm caused great bodily injury or death, is precluded under the doctrine of merger (People v. Ireland (1969) 70 Cal.2d 522, 538-540) and under Penal Code section 654. However, neither the merger doctrine nor section 654 precludes imposition of the firearm enhancement under section 12022.53, subd.(d).id: 17565
The trial court properly imposed full term enhancements under section 12022.53 on each count for rape, forcible oral copulation and digital penetration.Defendant was convicted of forcible oral copulation under Penal Code section 288a, subd.(c), forcible rape under section 261, subd.(a)(2), and forcible digital penetration under section 289, subd.(a)(1). These offenses are subject to the provisions of section 1170.1, subd.(h) which provides for full-term enhancements. The trial court therefore properly imposed full 10-year firearm use enhancements under section 12022.53, subd.(b) on those counts.id: 17281
Section 707, subd.(b)(25) applies to participants in a carjacking who did not personally wield the weapon.The juvenile court concluded the minor committed a carjacking while armed with a dangerous weapon within the meaning of Welfare and Institutions Code section 707, subd.(b)(25), which served as the basis for a CYA commitment not to exceed 10 years. The minor never held the gun during the crime. The term "armed" for purposes of section 707, subd.(b)(25), applies to principals to the offense who were not personally wielding the weapon.id: 17257
Trial court should have imposed 25 years-to-life under section 12022.53(d) for count three as well as count one but stayed the term since the base term was earlier stayed, stricken the section 12022.5 findings, and imposed but stayed the section 12022.53, subds. (b) and (c) findings. Defendant was convicted of the murder charged in count one and the robbery charged in count three. In addition, it was alleged as to each count that he personally used a handgun under Penal Code sections 12022.5, subd.(a)(1) and 12022.53, subd.(b), that he personally and intentionally discharged a handgun under section 12022.53, subd.(c), and that the act proximately caused the death under section 12022.53, subd.(d). The jury found all allegations to be true. The court committed various errors in sentencing on the firearm discharge and use findings as to counts one and three. The court should have 1) stricken the use findings under section 12022.5 for counts one and three; 2) imposed the 25 years-to-life enhancement on count one pursuant to section 12022.53, subd.(d); 3) imposed that enhancement on count three and then stayed it because the base term was stayed under section 654; and 4) imposed and stayed the 10 year and 20 year firearm use and discharge enhancements under section 12022.53, subds. (b) and (c) on counts one and three.id: 17221
The trial court impliedly found the firearm use enhancement was true by imposing the additional 10 year term.The information alleged robbery and an enhancement for personal use of a firearm. Defendant was convicted of the substantive offense in a court trial. Neither at trial nor at sentencing did the trial court expressly find the personal use of a firearm enhancement was true. However, the trial court impliedly made the finding by imposing the 10 year term for the enhancement. The absence of an express finding did not require that the enhancement be stricken. id: 17131
Court properly imposed full term enhancements under section 12022.53, subd.(b) for the sex offenses as required under section 1170.1, subd.(h).Defendant received a 25 years-to-life sentence for the forcible oral copulation conviction in count two. On counts 3 (forcible oral copulation), 7 (rape) and 15 (forced digital penetration) the court imposed consecutive determinate terms of eight years plus 10 years for the Penal Code section 12022.53, subd.(b) firearm use enhancements. In People v. Moody (2002) 96 Cal.App.4th 987, the court found the trial court could only impose one-third of the section 12022.53, subd.(b) enhancement on a consecutive, subordinate term imposed for attempted robbery. However, the crimes at issue, unlike attempted robbery, are subject to section 1170.1, subd.(h), which provides for full term enhancements.id: 17139
25 years-to-life weapon use enhancement under section 12022.53 applies to an aider and abettor even if the shooter is not convicted.Under Penal Code section 12022.53, subd.(d), a defendant convicted of a qualifying felony who intentionally and personally discharges a firearm, proximately causing great bodily injury or death is subject to an additional term of 25 years-to-life. This enhancement applies to an aider and abettor even if the shooter is not convicted.id: 16992
Section 12022.53 enhancement applied where the shooting at an inhabited dwelling was done in imperfect self-defense.Defendant was convicted of voluntary manslaughter based on imperfect self-defense, and discharging a firearm at an inhabited dwelling. He argued the Penal Code section 12022.53 enhancement which attached to both convictions was not applicable to a defendant who discharged a weapon at an inhabited dwelling in imperfect self- defense. However, the statute expressly provides it does not apply in cases of perfect self-defense. If the Legislature did not want it to apply to cases involving imperfect self-defense it would have said so.id: 16948
The court did not err in imposing the 25 years-to-life firearm enhancements for the robbery and attempted robbery counts where the offenses accompanied the murder.The 25 years-to-life enhancement contained in Penal Code section 12022.53, subd.(d) for intentional and personal discharge of a firearm during the commission of certain felonies was properly imposed, not only as to defendant's conviction for murder, but also for a robbery and six attempted robberies on separate victims that accompanied the murder.id: 16625
Prosecutor has discretion to allege firearm use enhancement under section 12022.5 or 12022.53.Defendant argued that he should have been charged with the Penal Code section 12022.5 gun use enhancement, rather than the section 12022.53 provision because the former is the more specific statute. However, the decision to allege an enhancement under section 12022.5 or 12022.53 was within the exclusive province of the prosecutor.id: 16522
Court did not err in imposing consecutive terms for the section 186.22 and 12022.53 enhancements.Defendant was convicted of attempted premeditated murder which carries a life term under Penal Code section 664, subd.(a). The court also found true the allegation that the crime was committed for the benefit of a gang under section 186.22. The court then set the term at life with a minimum of parole eligibility of 15 years. Thereafter, the court added a 25 years-to-life consecutive term for the section 12022.53, subd.(d) enhancement. The total term was 40 years-to-life. Contrary to defendant's claim, the court did not err by imposing consecutive terms for the gang and firearm use enhancements.id: 16523
Inclusion of attempted robbery in section 12022.53 enhancement did not violate equal protection even though armed assault was excluded.Defendant argued the application of the Penal Code section 12022.53, subd.(b) enhancement to his attempted robbery conviction violated state and federal equal protection principles since there was no rational basis for including attempted robbery within the confines of the section, and not including other crimes such as assault with firearm. However, armed assaults and attempted robberies do not carry the same risks, and the latter usually involves the application of violence. There was no equal protection violation.id: 16540
Court did not err in reconvening the jury to decide the firearm use enhancement where the jury was waiting to decide the prior conviction allegations and was therefore still under the court's control.Defendant argued the court lacked authority to reconvene the jury to determine the truth of the firearm use allegation because the jury had already returned verdicts on the substantive counts and made a finding on another enhancement. However, the new verdict form on the firearm use enhancement was sent in to the jury when they were waiting to decide the prior conviction allegations. The jury was still under the court's control and the trial court properly reconvened the jury to make the additional finding. The problem was that the jury was never instructed on the elements of the Penal Code section 12022.4, subd.(a) enhancement which they determined to be true. The error was harmless where the evidence on the elements was undisputed at trial.id: 16470
Court did not err in failing to define deadly and dangerous weapon where defendant killed the victim by striking him with a hammer.Defendant was charged with a sentence enhancement under Penal Code section 12022, subd.(a), alleging that he used a dangerous weapon in killing the victim. He argued the court erred in failing to instruct with CALJIC 12.42 which further defines a deadly or dangerous weapon. However, defendant admitted that he killed the victim by striking him with a hammer. There was no doubt over whether the hammer was capable of deadly use, or whether he had used it in that manner. The failure to give the CALJIC 12.42 could not have prejudiced the jury.id: 16405
A firearm use enhancement under section 12022.5 was properly imposed following the conviction for assault with a semiautomatic firearm under section 245, subd.(b),Defendant was convicted of assault with a semiautomatic firearm under Penal Code section 245, subd.(b) (as opposed to assault with a "mere" firearm under subdivision (a)(2)). He argued that since his offense was not specified as an exception under subdivision (a) or (d) of section 12022.5, an enhancement under section 12022.5 was unauthorized. However, the Legislature did not intend, by specifying particular crimes under section 245 for which firearm-use-enhancements could be imposed, to preclude their imposition for other crimes under section 245. The trial court properly imposed the section 12022.5 enhancement.id: 16248
Defendant used a firearm in the commission of each of the multiple assaults even though such use occurred on a single occasion and involved a single act.When a defendant commits an assault with a firearm upon an intended victim, and with the same shot injures an unintended victim, thereby committing another assault, the sentence for each assault may be enhanced by a separate firearm-use enhancement.id: 16249
Repeal of section 1170.1, former subdivision (h) does not revest trial courts with discretion to strike personal firearm use enhancements.In 1989, the Legislature deleted personal firearm use enhancements from the list of "strikable" enhancements set forth in Penal Code section 1170.1, former subdivision (h). Effective January 1, 1998, the Legislature repealed Penal Code section 1170.1, former subdivision (h). The repeal of this provision has not revested trial courts with discretion to strike the punishment for personal firearm use enhancements.id: 16250
The section 12022.53, subd.(d) enhancement may be added to a murder sentence when the crime occurred in 1998.Defendant argued the 25 years to life enhancement under Penal Code section 12022.53, subd.(d) could not be added to his murder sentence when the incident occurred in 1998. Defendant notes the reference in the provision to the section 12022.7 great bodily injury enhancement and the fact that that provision does not apply to a murder charge. However, the 1997 version of section 12022.53, subd.(a)(1) specifically provides that it applies to the crime of murder. That the Legislature later amended subdivision (d) to specify that the enhancement must be applied when an enumerated offense is committed and death results, adds little to the analysis.id: 16251
25 years to life firearm use enhancement under the 10-20-life law following attempted murder conviction is not cruel and unusual punishment.Defendant was convicted of attempted murder and it was determined that he personally discharged a firearm causing great bodily injury under Penal Code section 12022.53, subd.(d), (the "10-20-life" law.) He was sentenced to five years for attempted murder plus 25 years to life as required by section 12022.53. Contrary to defendant's claim, imposition of the term for the enhancement was not cruel and unusual punishment. The provision represents a careful gradation by the Legislature of the consequences of gun use in the commission of serious crimes. Moreover, the record did not show the punishment was grossly disproportionate in light of the offense and nature of the offender.id: 16185
Arming enhancement under section 12022, subd.(a)(1) may be applied to the crime of conspiracy.It has previously been held that an arming enhancement (Penal Code section 12022, subd.(a)(1)) cannot be imposed for a solicitation conviction because that offense is complete when the request is made. The same is not true of conspiracy which is a continuing offense and lasts until the completion of an overt act. Defendants had a gun available during the conspiracy and the section 12022, subd.(a)(1) enhancement was properly applied.id: 15296
Trial court properly added full term firearm use enhancements to defendant's indeterminate terms under the three strikes law.Defendant used a firearm in the commission of several robberies. Because he had two strike priors, he received an indeterminate term of 125 years to life in prison, plus a determinate term of 33 years. He argued the firearm use enhancements should have been reduced to one-third the middle term. However, the trial court properly added full term firearm use enhancements to defendant's indeterminate terms under the three strikes sentencing law.id: 15192
Court did not violate section 654 by imposing a life term for the murder and a second life term under the section 12022.53, subd.(d) enhancement.Defendant argued that by imposing both a 15 years to life term for second degree murder and an additional enhancement penalty of 25 years to life under Penal Code section 12022.53, subd.(d), the court punished him twice for the same act - firing the shots that killed the victim. However, the trial court did not err in failing to apply section 654 to the enhancement. The law did not punish defendant twice for the same act. Rather, it punished him once each for the components of that act which make it so dangerous and anti-social.id: 15086
Applying 10-20-life enhancement to aiders and abettors of a gang member who uses a firearm does not violate equal protection, due process, or cruel and unusual punishment provisions.Defendant received a 25 years to life enhancement under Penal Code section 12022.53, subd.(d) because the murder was committed with a firearm. Subdivision (e) of that section authorizes the imposition of the enhancement to an aider and abettor if a street gang allegation is pled and proved as it was here. Defendant argued the provision violates equal protection because it treats aiders and abettors of gang crimes differently than aiders and abettors of other crimes. However, an aider and abettor of a gang member is not similarly situated to aiders and abettors of firearm users who are not gang members. Therefore, there is no equal protection violation. Moreover, section 12022.53, subd.(e) is a clear expression of legislative intent to extend an enhanced penalty to aiders and abettors, and as such does not violate due process. Finally, the provision does not violate the prohibition against cruel and unusual punishment in light of the threat posed by gang members using firearms.id: 15101
Court did not err in imposing the low term for the attempted voluntary manslaughter as well as the 10-year aggravated term for the weapon use.The trial court did not abuse its discretion in imposing the 18-month low term for the attempted voluntary manslaughter but then require defendant to serve the aggravated 10-year sentence for firearm use. The court could logically conclude the low term for the manslaughter was in order given the absence of prior crimes, yet find the handgun use was aggravated by repeatedly firing the gun at an unarmed victim causing great bodily injury, and that the defendant profoundly abused her sworn duties as a police officer by shooting the victim and destroying the evidence.id: 15102
25 years to life firearm use enhancement does not violate equal protection despite the fact that it is far more harsh than enhancements for other murders where different weapons are used.In addition to his murder sentence, defendant received a 25 years to life term for use of a firearm pursuant to Penal Code section 12022.53, subd.(d). Defendant argued the sentence violated equal protection principles because similarly situated murderers using other kinds of deadly weapons are not subjected to such a harsh penalty enhancement. Using the rational basis standard, the court found there was no equal protection violation since section 12022.53, subd.(d) targets more serious offenses than those included in the other enhancement provisions.id: 14827
Imposition of personal use enhancement is mandatory when the underlying offense is assault with a firearm and no statement of reasons is required.Imposition of a sentencing enhancement for personal use of a firearm is mandatory when the underlying offense is assault with a firearm. Therefore, the imposition of the midterm in not a sentencing choice and requires no statement of reasons.id: 14081
Imposition of the middle term for the weapon use enhancement was not an enhancement choice requiring a statement of reasons.The trial court did not state reasons for imposing the four-year middle term for defendant's having been personally armed with a firearm within the meaning of Penal Code section 12022, subd.(c). He argued that selection of any of the three enhancement terms, including the middle term is an enhancement choice, requiring a statement of reasons. However, enhancement choice means selection of the upper or lower enhancement term. Choice of a mandated middle term is not an enhancement choice requiring a statement of reasons.id: 14082
Imposition of the upper term for the gun use enhancement was proper where defendant threatened to kill the victim in addition to using the weapon as the force by which the money was demanded.Defendant argued the reason for imposition of the upper term for the gun use enhancement was the same as the reason for application of the enhancement at all - that defendant pointed the gun at various victims. However defendant took great care to exploit the use of the firearm to instill in the victims more than the requisite fear for their lives. Because defendant specifically threatened to kill, in addition to using the weapon as the force by which the money was demanded, imposition of the upper term was proper.id: 14083
Knife-use finding was proper where the victim was stabbed by defendant even though the actual cause of death was blows to the victim's head by a club used by defendant.Defendant was convicted of second degree murder during which he used a knife within the meaning of Penal Code section 12022, subdivision (b). He argued the knife use finding was improper because even though he stabbed the victim in the neck, the coroner testified the cause of death was the blows struck to the victim's head with a club. However, the knife-use allegation was proper where the knife was instrumental in the consummation of the murder and was used to his advantage.id: 14087
Knowledge is not a necessary element for vicarious liability under section 12022, subdivision (a)(1) for a co-principal being armed with a firearm.Defendant was convicted of robbery and the jury found true an allegation that he was armed with a firearm during the commission of the offense within the meaning of Penal Code section 12022, subdivision (a)(1). He argued the true finding should be set aside because the prosecutor's closing argument prejudicially misled the jurors concerning the knowledge requirement for violating section 12022, subdivision (a)(1) as an aider and abettor and that the jury instruction defining vicarious arming with a firearm failed to state defendant had to know of the presence of the firearm in order for the enhancement allegation to be found true. However, there is no scienter requirement for an aider and abettor to be found vicariously armed with a firearm under section 12022, subdivision (a)(1).id: 14088
Minor's admission that he was vicariously armed during the robbery justified the extended CYA commitment.Welfare and Institutions Code section 1769, subd. (b) provides for an extended Youth Authority commitment for persons found to be in violation of any of the offenses listed in subdivision (b) of section 707. Section 707, subd. (b)(3) specified a robbery while armed with a deadly or dangerous weapon as one of the offenses justifying the extended commitment. Defendant argued the provision did not apply to him because armed must be interpreted to mean personally rather than vicariously armed. However, defendant's admission that he was vicariously armed brought him with the meaning of section 707, subd. (b)(3).id: 14089
One is personally armed with a firearm if he has the weapon available for offensive or defensive use.Defendant was convicted of trafficking cocaine and was found to be personally armed with a firearm under Penal Code section 12022, subdivision (c). He argued the court erred in instructing the jury that a person is armed with a firearm when he simply carries a firearm or knowingly has it available for use in either offense or defense. One gun was found in defendant's car on the floorboard on the passenger's side. Defendant need not have been carrying the firearm and having it available on the floorboard satisfied the statute. Moreover, two people can be personally armed with one firearm in cases such as this where the gun was available to the driver as well as the passenger.id: 14090
Section 1170.1 does not apply to a gun-use enhancement attached to an offense which carries an indeterminate term of imprisonment.Defendant argued the court erred in sentencing him to full strength consecutive sentences for the gun-use enhancements. Since count 13 was the principal term a full five-year term on that gun use enhancement was clearly proper under Penal Code section 1170.1. However, the gun-use enhancements of counts 2 and 7 were enhancements imposed pursuant to sections 12022.5 and 669. They were attached to indeterminate terms imposed under section 1168. Section 1170.1 does not apply to a gun-use enhancement attached to an offense which carries an indeterminate term of imprisonment. Therefore, the court did not err in imposing consecutive five-year sentences on the two gun-use enhancements.id: 14094
The jury's inability to find the codefendant was guilty of robbery was not inconsistent with the finding that the armed-with-a-firearm allegation was true.Defendant argued the armed with a firearm allegation under Penal Code section 12022, subdivision (a)(1), was only vicarious and could not be sustained because the jury did not find the codefendant was armed with a firearm. That evidence supported the allegation. The jury's inability to agree that the codefendant was guilty of robbery was not inconsistent with the finding that the armed allegation was true. There was also evidence that defendant was the sole robber and impliedly, the person with the firearm. That evidence also supported the jury's finding.id: 14097
Trial court has no discretion to strike a weapon use enhancement.The trial court abused its discretion in striking the gun use enhancement as there is no such discretion following the 1989 amendment to Penal Code section 1170.1, subdivision (h). The rule applies retroactively to defendant because he committed the charged crime after section 1170.1 was amended. Defendant argued application of the rule to him would result in the denial of the benefit of his plea bargain. However, there was no bargain. His plea resulted from an indicated sentence of three years - striking the enhancement. The appropriate remedy is to allow defendant to withdraw his plea and proceed to trial on the original charges.id: 14098
Trial court has no discretion to strike a firearm use enhancement under section 12022.5In 1989, the Legislature amended Penal Code section 1170.1, subdivision (h) by deleting section 12022.5 (firearm use enhancement) from the list of statutory enhancements that a trial court might, in its discretion, strike if sufficient "circumstances in mitigation" exist. The trial courts no longer have authority to continue to strike such firearm use enhancements "in furtherance of justice" under section 1385.id: 14099
Two weapon use enhancements were proper where appellant killed one victim while he falsely imprisoned the other.Appellant was convicted of second degree murder and false imprisonment. He argued that the court erred when it imposed two separate and consecutive terms based on an assertedly single firearm use enhancement. However, the crimes occurred during the same time period, but the two acts did not constitute one continuous transaction. Appellant had time to pause and reflect on the penal consequences of each act and the motivation underlying the uses of the gun were unrelated to each other.id: 14100
Weapon use enhancement applied to defendant who displayed the firearm even though he did not point the weapon, fire it, or utter threats.Penal Code section 12022.5, subd. (a), imposes a sentence enhancement on any person who personally uses a firearm in the commission or attempted commission of a felony. The use enhancement applied to the defendant who displayed the handgun during the robbery to two people but who did not discharge the weapon, point it at the victims, or utter any verbal threats.id: 14101
Weapon-use enhancement was proper despite evidence that defendant did not use the knife until after he had finished raping the victim.Defendant received a sentence enhancement for using a deadly weapon, i.e., a knife, in the commission of a rape (Penal Code section 12022.3, subdivision (a)). He argued the enhancement must be stricken because the evidence establishes he did not use the knife until after he had finished raping the victim. However, for the purpose of a weapon-use enhancement, the commission of rape does not end with the completion of the sex act. The offense continues as long as the assailant maintains control over the victim.id: 14102
Weapon-use enhancement was proper even though appellant did not personally fire the fatal shot.Appellant argued the evidence was insufficient to sustain the Penal Code section 12022.5 enhancement because it was not proven that he fired the fatal shot. However, there being no question that appellant personally used a firearm during the commission of the robbery, the enhancement was proper regardless of whether he also personally shot the victim.id: 14103
Weapon was "used" during the sex offenses for enhancement purposes where it was displayed initially and defendant moved around the house committing crimes.Defendant argued the evidence did not support the Penal Code section 12022.3, subdivision (a) enhancement for use of a gun during the rape and sodomy. He claimed he did not "use" the gun during the sex offenses because he displayed it only at the outset of his criminal activity, approximately one hour before he committed the sex offenses, and he left Mary several times during the interim to commit crimes in other parts of the house. However, a reasonable jury could conclude that although defendant's presence with the victims was sporadic, the control and fear he created by his initial firearm display continued throughout the encounter.id: 14105
While a pellet gun is not a firearm under the section 12022.5 firearm use enhancement it is still a deadly weapon within the meaning of section 12022, subdivision (b).Appellant's use of a pellet gun did not support a firearm use enhancement pursuant to Penal Code section 12022.5, subdivision (a) because pellet guns have been removed from the statutory definition of firearms. However, a pellet gun is still a dangerous or deadly weapon within the meaning of section 12022, subdivision (b). Appellant's admission of the Penal Code section 12022.5 enhancements necessarily included his admitting a section 12022, subdivision (b) enhancement as to each offense. The court struck the section 12022.5 enhancements making each such enhancement a violation of section 12022, subdivision (b).id: 14106
Court has no discretion to strike firearm use enhancement under section 12022.5.Defendant was convicted of robbery with an enhancement for the personal use of a firearm during the offense under Penal Code section 12022.5. He argued the court erred in ruling it had no discretion to strike the firearm use enhancement because the court retains discretion to strike such enhancements under section 1385, in the interests of justice. However, the Legislature's 1989 repeal of the operative language in section 1170.1(h), which had specifically allowed for the striking of such enhancements, deprived the trial court of discretion to strike these enhancements at sentencing.id: 14052
Culbreth is overruled and a firearm use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true.Penal Code section 12022.5 provides for a sentence enhancement when a person uses a firearm in the commission or attempted commission of a felony. In <i>In re Culbreth</i>(1976) 17 Cal.3d 330, the Court held that even if there are multiple counts involving multiple victims of violent crime, the enhancement may be imposed only once if all charged offenses are incident to one objective and comprise an indivisible transaction. The instant Court overruled <i>Culbreth</i> and found that a firearm-use enhancement under section 12022.5 may be imposed for each separate offense for which the enhancement is found true. The new interpretation of section 12022.5 did not apply to the instant defendant as such application would have violated due process and ex post facto principles.id: 14053
Defendant violated the firearm use enhancement provision even though the firearm he used was unloaded.Defendant willfully and aggressively, although deceptively, used his firearm as if loaded when he held it to the victim's head and forced her to orally copulate him. He argued the firearm used enhancement under Penal Code section 12022.3 was improperly found and imposed because the firearm was unloaded. However, defendant violated section 12022.3 when he used the unloaded firearm in the commission of the designated offense.id: 14054
Defendant was found to have personally used the firearm during the ADW notwithstanding the language in the verdict form that he was armed with a firearm.Defendant argued he was found guilty of being armed with a firearm, which under Penal Code section 12022 could not be charged as an enhancement to the crime of assault with a deadly weapon or firearm. The information alleged he personally used a firearm under section 12022.5 and the jury was so instructed. However, the verdict forms read that he was armed with a firearm. The verdict forms were not dispositive. Moreover, the trial court had the authority to correct the clerical error in the verdict forms.id: 14055
Defendant was personally armed within the meaning of the section 12022, subd. (c) enhancement where he had weapons available for his use.Penal Code section 12022, subd. (c) provides that persons committing specified narcotics offenses who are personally armed shall have an enhancement to their prison term. The phrase personally armed does not mean heaving arms upon the person but is used to distinguish personal from vicarious liability for being armed. In the instant case evidence was sufficient to support a finding that defendant was personally armed within the meaning of the enhancement provision where two weapons were found in the room from which he had emerged when the officers entered the house.id: 14058
Defendant's act in putting the gun to the head of the robbery victim with accompanying threats constituted aggravated use and justified the upper term for the enhancement.Defendant argued the trial court erred in imposing the upper term for the firearm use enhancement pursuant to Penal Code section 12022.5, subdivision (g). However, defendant did not merely possess or display the handgun. Instead, he entered the bar, pointed the gun at the victim's face and used it to threaten her into complying with the request for money by putting the gun to her head at close range. The manner in which defendant used the gun clearly involved the threat of great bodily harm, which is factor legally sufficient to justify imposition of the upper term.id: 14059
Drug and alcohol ingestion supported the upper term for the firearm use enhancement that accompanied the assault with a firearm charge.Defendant was convicted of assault with a firearm on a peace officer in which he personally used a firearm (Penal Code section 245, subdivision (d)(1); 12022.5). He argued the trial court erred by failing to exercise its discretion as to whether to impose the firearm use enhancement. Where firearm use is an element of the underlying offense, the general rule that punishment for a section 12022.5 finding is mandatory, has no application. However, the prosecutor's comments regarding the enhancement as well as the court's statements with respect thereto established the court was aware of its discretion. Moreover, the court did not rely on an improper factor in imposing the upper term. Contrary to defendant's claim, the court properly considered defendant's ingestion of alcohol and drugs as an aggravating rather than a mitigating factor.id: 14062
Evidence supported firearm use enhancements where appellants displayed a weapon and threatened to kill the victim prior to the sexual assaults.Appellants argued there was insufficient evidence of firearm use regarding the sexual offenses against the victim. However, appellants sufficiently frightened the victim by displaying their guns and threatening to kill her. It was unnecessary thereafter to continually display their guns. Appellants never left the limousine during the sexual assaults and the victim reasonably believed they had instant access to the firearms.id: 14067
Evidence supported the finding that defendant was armed with a firearm during the drug deal where the firearm was sitting next to the drug cache.The jury found that during the commission of the offense of possession of cocaine base for sale, defendant was personally armed with a firearm within the meaning of Penal Code section 12022, subdivision (c). He argued the evidence did not support the allegation be cause there was no showing that he was aware of the existence of the firearm or that the firearm was available for offensive or defensive use. However, the firearm was located near the cache of cocaine base. Evidence supported the enhancement given defendant's proximity and access to the loaded firearm and the drug cache nearby.id: 14068
Evidence supported the firearm use enhancement where the defendant placed a cold steel cylindrical object to the back of the victim's neck and threatened to kill him.Evidence supported the firearm use enhancement under Penal Code section 12022.5. Defendant threatened to kill the victim, not merely to hurt him. The sensation of the cold steel cylindrical object at the back of the victim's neck, coupled with the threats to kill and the resultant fear of harm was sufficient to support the jury's finding.id: 14069
Evidence supported the gun furnishing enhancement where defendant furnished the gun at the time the two men left to commit the robbery.Evidence established that defendant furnished the firearm to his confederate at the time the two men left to commit the robbery. Defendant argued the evidence did not support the gun furnishing allegation under Penal Code section 12022.4 because if the gun was furnished prior to the commission of the robbery,it was not furnished during the commission of the crime as required. However, because the furnishing occurred during the continuous transaction leading to the crime, it occurred during the commission of the robbery.id: 14070
Evidence supported weapon use finding where defendant showed the gun in a manner that facilitated the robbery.Evidence supported the finding that defendant used the gun for purposes of Penal Code section 12022.5, subdivision (a) where defendant deliberately showed the gun. Where a defendant shows a gun in the commission of a crime and there is no evidence to suggest any purpose other than intimidating the victim in order to successfully complete the underlying offense, the jury is entitled to find facilitative use rather than an incidental or inadvertent exposure.id: 14071
Exception to the rule prohibiting both gun use and GBI enhancements applies to attempted murder.Appellant argued it was improper for the court to impose sentence enhancements for both gun use under Penal Code section 12022.5 and great bodily injury under section 12022.7 following his attempted murder conviction. Section 1170.1, subdivision (e) provides that when two or more specified enhancements may be imposed only the greatest enhancement shall apply. however, there is a list of crimes excepted from this rule and the list includes attempted lewd and lascivious acts with children as well as other crimes including murder. The word attempted prior to lewd and lascivious acts modifies the other listed crimes including murder. Therefore, both enhancements were proper.id: 14072
Failure to instruct on the elements of the weapon use enhancement was harmless under the Watson standard where witnesses testified defendant displayed the knife in a menacing manner during the robbery.The trial court erred in failing to instruct the jury as to the factual elements necessary to support a sentence enhancement for use of a deadly and dangerous weapon under Penal Code section 12022, subdivision (b). The failure to instruct as to all elements of the enhancement is prejudicial only where it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (<i>People v. Watson</i> (1956) 46 Cal.2d 818, 836.) The failure to properly instruct the jury in the instant case was not prejudicial where several witnesses testified defendant displayed a knife during the robbery and described in detail the menacing manner in which he displayed it.id: 14073
Firearm enhancements were proper following a conviction of assault with a semi-automatic firearm.Defendant was convicted of assault with a semi-automatic firearm under Penal Code section 245, subdivision (b). He argued the trial court erred in imposing firearm use enhancements because their imposition violates an express exception to the applicability of section 12022.5 where firearm use is an element of the offense (section 12022.5, subdivision (a)). However, section 12022.5, subdivision (d) provides an additional term may be imposed in cases of assault with a deadly weapon which is a firearm under section 245. Since a loaded semi-automatic firearm which is used in a violation of section 245, subdivision (b) is both a deadly weapon and a firearm, the exception of section 12022.5, subdivision (d) applies and the enhancements were proper.id: 14074
Firearm use enhancement applied to defendant who fired a shotgun into a crowd notwithstanding that the fatal shot came from codefendant's gun.Defendant argued that the firearm use enhancement under Penal Code section 12022.5 did not apply to him because the evidence indicated the fatal shot came from his codefendant's firearm, rather than his own. However, both defendants fired shotguns into a crowd. This is the type of conduct the Legislature sought to deter in enacting section 12022.5. That the fatal shot came from codefendant's gun did not exempt defendant from the enhancement.id: 14075
Firearm use enhancement is properly applied to a burglar who has completed the act but has not reached a place of temporary safety.Claiming no burglary was in progress when he confronted the victim with the handgun, defendant argued the evidence was insufficient to support the jury's finding that he used a firearm in the commission of the burglary. However, a defendant who uses a firearm after completing the act constituting burglary but before he has reached a place of temporary safety is subject to the firearm use enhancement of Penal Code section 12022.5, subdivision (a).id: 14076
Firearm use enhancement was proper in felony murder prosecution where appellant used a firearm during the robbery even though he did not personally fire the fatal shot.Appellant went to the Cardenas house for the purpose of committing robbery. He was armed and used his gun in the course of the robbery to shoot at the two victims who survived. His codefendant shot and killed Cesar Cardenas during the robbery. Appellant's use of a firearm was part of a related series of crimes and therefore use was established for purposes of the Penal Code section 12022.5 enhancement.id: 14077
Gun use finding was proper although robbery victim never saw the gun where defendant used it to facilitate his escape.Defendant argued the gun use finding pursuant to Penal Code section 12022.5 was improper because the victim never saw defendant display a gun when he robbed her. However, defendant did use a weapon to rob and kill the victim's husband moments later. The robbery of the wife was not technically over until defendant reached a place of temporary safety. Therefore, the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of the wife.id: 14078
Imposition of a weapon use enhancement for each drive-by shooting victim was proper.Defendant was convicted of two counts of attempted murder with findings that he had inflicted great bodily injury on the victim as a result of discharging a firearm from a motor vehicle (Penal Code section 12022.55). He argued the court erred in sentencing him with a gun use enhancement for each count. However, the evil addressed by section 12022.55 is not related to the number of occasions of gun use, but rather to the number of victims who suffer great bodily injury from a drive-by shooting. Accordingly, more than one seriously injured victim does indeed create more than one violation of the law, permitting multiple enhancements under section 12022.55.id: 14080
A person is armed with a firearm during a possessory drug offense when he possesses guns and drugs, keeps them together, and is not present when police seize them from his house.Penal Code section 12022 imposes an additional term of prison for anyone armed with a firearm in the commission of a felony. A defendant convicted of a possessory drug offense is subject to this arming enhancement when the defendant possesses both the drugs and the gun, and keeps them together, but is not present when the police seize them from the defendant's house.id: 14046
A personal firearm use under Penal Code section 12022.5 applied to a conviction of assault with a semiautomatic firearm under section 245, subdivision (b).Defendant argued Penal Code section 12022.5, subdivision (d) must be construed as excluding the crime of which he was convicted, section 245, subdivision (b), because the enhancement provision does not mention it. However, the general language in section 12022.5, subdivision (d), which states that an additional term may be imposed in cases of assault with a deadly weapon which is a firearm under section 245, applies to the subsequently enacted subdivision (b) of section 245 relating to assault with a semiautomatic firearm.id: 14047
Court did not err by instructing that defendant was armed under section 12022, subdivision (a) if the weapon was available.The trial court did not err in instructing the jury that defendant was armed within the meaning of Penal Code section 12022, subdivision (a), if the weapon was available. The underlying intent of the Legislature to deter persons from creating a potential for death is served by using a definition of armed which includes having the weapon available for use.id: 14049
Court did not err in imposing the middle enhancement term after it had imposed the lower base term on the substantive crime.Before imposing the middle enhancement term under Penal Code section 12022, subd.(e), the trial court imposed the lower base term for the substantive crime of transporting methamphetamine. Defendant argued the same mitigating factors causing the trial court to impose the lower base term on the transportation count necessarily mandated its choice of the lower enhancement term. However, the court was not required to give the same facts the same weight and effect in two different exercises of discretion.id: 13883
Trial court properly considered defendant's parole status in deciding to impose the upper term on the firearm-use enhancement.California Rules of Court, rule 428(b) limits the authority of a trial court in imposing additional punishment for <U>certain</U> enhancements by providing that the upper term may be imposed for an enhancement only when there are circumstances in aggravation that relate directly to the fact giving rise to the enhancement. The Court of Appeal held the trial court erred in basing its imposition of the upper term for a firearm-use enhancement upon the circumstance that defendant was on parole when he committed the offenses at issue. However, rule 428(b) is invalid to the extent it conflicts with controlling statutory authority. Because a sentencing court has long been permitted to consider the circumstance that the defendant was on parole when he or she committed the offense in imposing the upper term a sentencing court may rely upon that same consideration - defendant's parole status - in determining whether the upper term should be imposed for an enhancement.id: 13832
There was no improper dual use of facts in imposing the upper term for the gun use enhancement and the attempted murder as high degree of cruelty is not identical to the fact that the victim was shot in the chest.Defendant argued there was an improper dual use of facts where the court imposed the upper term for the attempted murder and the upper term for the gun use enhancement on the charge due to the high degree of cruelty and callousness. However, the high degree of cruelty in selecting the upper term for the murder was not identical to the fact that the manner in which he used the weapon with no provocation and that he shot the victim in the chest. A gun use enhancement is proper even where the weapon is not fired. Where the weapon is fired into the victim's chest from point blank range, the manner of the gun use is aggravated.id: 13838
Section 654 may not be applied to a single gun use enhancement which is in turn attached to a single conviction of voluntary manslaughter.Defendant was convicted of voluntary manslaughter and the jury also found true the allegation that defendant personally used a firearm in the commission of the offense within the meaning of Penal Code section 12022.5, subdivision (a). The court fixed the term on the firearm use enhancement at the lower term of three years, but stayed imposition of the term under section 654 because the enhancement and the crime arose from the same act. However, because the underlying crime and the enhancement are not identical there can be no double punishment under section 654. The trial court was not authorized to stay imposition of the enhancement and the judgment was modified to reflect imposition of the consecutive term mandated by section 12022.5, subdivision (a).id: 13762
Court did not err in omitting unanimous verdict instruction where the section 12022(b) allegation listed two weapons because defendant conceded use of one weapon and inclusion of the other was merely surplusage.In recording the guilty verdict the jury found true the allegation that defendant "personally used a deadly and dangerous weapons(s), to wit knife and jack handle, within the meaning of Penal Code section 12022(b)." Defendant argued use of a knife and use of a jack handle are different acts and the court had a sua sponte duty to inform the jurors they must agree on the particular act. However, where it was conceded defendant had personally used a jack handle and that it was a deadly and dangerous weapon - and where the knife use allegation was mere surplusage - the court did not err in omitting CALJIC 17.01.id: 13334
Inconsistent enhancement verdicts were sustained where evidence supported the weapon use finding.Defendant was convicted of assault with a deadly weapon and each count was enhanced by an allegation that he personally used a firearm. However, the jury found the additional allegation of arming a principal in the commission of a felony to be untrue. Defendant argued the inconsistent verdict required reversal of the weapon use enhancements. However, verdicts which are inconsistent may nevertheless be sustained and such was the case here where the evidence was plainly sufficient to support the charge of assault with a firearm.id: 12668
Juvenile court properly found the minor committed robbery while armed with a firearm despite the fact that he was only vicariously armed.Welfare and Institutions Code section 707, subdivision (b)(3), specifies the criminal offense of robbery while armed with a dangerous or deadly weapon. The offense specified covers vicarious as well as personal arming.id: 11675
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245