Skip to content
Name: People v. Smit
Case #: G049090
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/17/2014

Setting zip gun boobytraps, which were designed to fire when the defendant was not present, in an attempt to kill a victim qualifies as personal use of a firearm for purposes of Penal Code section 12022.53. Smit was convicted of several drug offenses and attempted murder of the detective whose testimony was required to convict him. His efforts to kill the detective included attempting to fire a military rocket at the building where the detective worked, setting three boobytraps using panji boards (boobytrap devices), and three others using zip guns. One of the zip gun boobytraps was attached to a fence gate and was supposed to fire when the gate was opened. The others were rigged underneath vehicles known to be driven by the detective. On appeal, Smit contended that the evidence did not support his conviction for building and maintaining a boobytrap (Pen. Code, § 12355, subd. (a)). The appellate court rejected the argument, finding that the circumstantial evidence found in Smit’s home and tying him to the panji boards and zip guns supported the jury’s determination of guilt. Smit also contended that the evidence did not support the enhancement for personal use of a firearm (Pen. Code, § 12022.53, subd. (b)) found in connection with the attempted murder counts. The appellate court rejected that argument as well. Use for purposes of a firearm enhancement means, among other things, “to carry out a purpose or action by means of.” (People v. Chambers (1972) 7 Cal.3d 666, 672.) By setting a trap using a rigged firearm with the potential to fire when he was not present, defendant clearly used the zip gun to carry out his purpose of attempting to kill the detective. As a result, defendant’s action qualified as personal use a firearm within the meaning of section 12022.53, subdivision (b).