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Name: People v. Thiessen
Case #: C065896
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 01/25/2012

Within the meaning of Penal Code section 12022.53, subdivision (b), a defendant “uses” a firearm when his use emboldens another to shoot, regardless whether the victim observes defendant’s weapon. Appellant was convicted at jury trial of attempted murder and shooting from a vehicle and as to each count the jury found true a personal use of a firearm enhancement. (Pen. Code, sec. 12022.53, subd. (b).) According to the evidence, appellant’s co-defendant fired two shots from a vehicle at the victim. Appellant pointed his shotgun at the victim from the same window and pulled the trigger but the shotgun did not fire. The court rejected appellant’s claim that because there was no evidence that the victim saw appellant’s gun there was insufficient evidence to support the jury’s finding. Use of a firearm to facilitate the commission of the underlying crime is sufficient to support a finding of use. Here, by using his gun as he did, appellant showed his solidarity with the co-defendant and emboldened him to shoot, thereby using his gun to actually produce harm.