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Name: People v. Palmer
Case #: B170281
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 10/31/2005

Appellant committed an armed robbery. He shot at the police officer trying to arrest him. The officer broke his ankle while diving for cover behind his vehicle. Appellant was convicted of robbery, attempted murder, and assault on a peace officer with a firearm. The jury found true a personal use of a firearm causing g.b.i. allegation under Penal Code section 12022.53, subdivision (d). On appeal, appellant challenged the 12022.53, subd.(d) enhancement because the officer broke his ankle as a result of appellant’s pointing of the gun, not discharging it, and therefore the discharge of the gun was not a proximate cause of the injury. The appellate court rejected the argument, concluding that the enhancement is satisfied even though the injury was not a bullet wound but a broken ankle resulting from evasive action. Further, the evidence was sufficient to prove the injury was caused by the discharge of the gun rather than the pointing of the gun, and therefore counsel was not ineffective for failing to advance an insufficiency theory. Also, CALJIC 17.19.5 adequately advised the jury of the elements of the enhancement. The most natural reading of the instruction is that the discharge of the firearm must proximately cause the injury. Further, any instructional error would have been harmless: the evidence was overwhelming that the discharge of the gun was the proximate cause of the injury.