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Name: People v. Marshall
Case #: B137038
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 08/21/2000
Subsequent History: Review granted 11/29/00 (S091666); further action deferred pending disposition in People v. Sengpadychith (S090076)

The jury instructions given here on the enhancement for personal use of a firearm under Penal Code section 12022.53, subdivision (d), violated appellant’s due process rights under the Fourteenth Amendment. Because appellant was sentenced to 25 years to life for the underlying offense, and 25 years to life for the enhancement, Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], applies. The jurors were not instructed that the intentional and personal discharge of a firearm must proximately cause death. Neither were they instructed on the definition of proximate cause. The jurors were also not instructed that the victim must be a person other than an accomplice. As these are elements of the enhancement, Apprendi requires that the jury decide these issues. However, the court also determined that the error is not prejudicial per se, and the prosecution must instead, show the error to have been harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. The court so found because there was no dispute that the bullets fired into the victim approximately caused death, and there was no evidence that the decedent could have been an accomplice of defendant in any crime.