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Name: People v. Garcia
Case #: B141994
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/26/2001
Subsequent History: Resp's rev. granted as S097765; Appellant's rev. den. 8/8/01

The Court reversed a Penal Code section 12022.53 enhancement because no one was convicted of both the murder and the intentional and personal discharge of a firearm. Here, in a drive-by shooting, appellant was the driver (and did not personally use a firearm) and Morales was the shooter, but Morales was acquitted. Under section 12022.53, subdivisions (b), (c), and (d), not only must it be shown that the crime was committed for the benefit of a street gang, but also there must be a conviction of the underlying felony by the person who personally used or discharged a firearm.