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Name: Alvarado v. Superior Court
Case #: B194139
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/16/2007

In the context of Penal Code section 12022.5, subdivision (a) (use of a firearm in commission of a felony), something more than being “armed” is required. A defendant is armed with a weapon if he has it available for use. On the other hand, a gun will be found to be “used” when there is evidence of gun-related conduct coupled with the intent the gun-related action facilitate the crime. (People v. Granados (1996) 49 Cal.App.4th 317.) Here the evidence presented at the preliminary hearing was that defendant, intending to commit suicide by a cop, entered a store and laid a shotgun on a counter and directed the store clerk to call the police. He planned to shoot the first officer through the door and, in turn, be shot and killed by the police. Other than resting his hand on the gun at some point, defendant took no other action with the gun, and no witness or potential victim associated the gun with him. Because the only evidence of defendant’s gun-related conduct was passive exposure of the gun, the personal use enhancement attached to the second degree burglary could not stand, although sufficient evidence existed as to an “arming” enhancement. Accordingly, the court issued the writ of prohibition stemming from the denial of the Penal Code section 995 motion.