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Name: People v. Flores
Case #: G033151
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/10/2005
Subsequent History: rvw. den. 8/10/5

A firearm sentencing enhancement under Penal Code section 12022.53(d) cannot be supported by evidence showing that the defendant has killed his accomplice. The defendant was charged with murdering two people, one of whom was an accomplice to the target crime (i.e., the murder of the second person). Defendant was found guilty of murdering his accomplice but not guilty of the other murder; the jury found true a firearm enhancement after the judge modified CALJIC 17.19.5 to delete the requirement that he must have inflicted great bodily on someone “other than an accomplice.” The Attorney General conceded the error but argued that it was harmless because, as a matter of law, one may not be an accomplice to one’s own murder. Under that theory, however, the accomplice exception would never apply, so in order to give effect to all elements of the statute, the exception must be attached to the intended crime rather than to the charged crime.