A firearm use enhancement attached to a conviction for carrying a loaded firearm with the intent to commit a felony must be stricken. Among other felonies, Stout was convicted of carrying a loaded firearm in violation of Penal Code section 25800. Attached to that charge, the jury also found true an allegation Stout personally used a firearm in commission of the felony. (Pen. Code, § 12022.5, subd. (a).) On appeal, Stout argued the enhancement must be stricken. The Attorney General agreed. Held: Enhancement stricken. Section 25800, subdivision (a) punishes the passive or static act of carrying a firearm with the intent to commit a felony. The offense is complete when the firearm is carried with that intent. A gun use occurs in the commission of an offense if the use objectively facilitates the offense. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1495.) In In re Pritchett (1994) 26 Cal.App.4th 1754, the court concluded the firearm use enhancement must be stricken when attached to a charge of possession of a short-barreled shotgun. In People v. Arzate (2003) 114 Cal.App.4th 390, the court concluded the firearm use enhancement must be stricken when attached to a charge of carrying a concealed firearm. Analogizing to these cases, this court concluded “the act of carrying a loaded firearm with intent to commit a felony” does not involve “the use of a firearm in commission of the armed criminal action felony.” The fact that Stout used the firearm to commit other felonies does not mean he used it in the commission of the section 25800 felony.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C085360.PDF