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Name: People v. Frausto
Case #: B212054
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/28/2009

For the purpose of Penal Code section 12022.53, subdivision (d) (personal discharge of a firearm causing great bodily injury or death), discharge of the firearm before, during, or after the felonious act will support the enhancement if the discharge is part of a continuous transaction.
In this case, the jury convicted appellant of the murder of Lucero and the attempted murder of Sigala and Castro and as to each offense, found true an enhancement pursuant to Penal Code section 12022.53, subd. (d), naming Lucero, such that it was the death of Lucero that formed the basis for the enhancement. The evidence presented at trial was that appellant came upon the three victims and shot them, Sigala first, followed by Lucero, and then Castro. Appellant argued that the enhancement could apply only to the Lucero murder conviction because the firearm discharge did not occur during the commission of the other two crimes. The court rejected the argument. Under rules of statutory construction which consider the legislative intent behind the statute and compare identical terms in analogous statutes, the term “in the commission of” used in section 12022.53, subd. (d) is broadly construed and does not mean the same as “while committing.” Instead, a firearm is discharged in the commission of a felony if the underlying felony and the discharge of the firearm are part of one continuous transaction, including flight. Here, appellant either shot the three because of malice against them all or to eliminate witnesses to the principal killing to effectuate his escape. Under either theory, it is immaterial as to when he shot Lucero as all the felonies were part of one continuous transaction, so as to support the firearm enhancement against each.