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Name: People v. Yang
Case #: C062816
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/13/2010

The enhancement for firearm discharge by a co-principal which causes death in a gang-committed felony (Pen. Code, § 12022.53, subd. (d) & (e)(1)) does not apply to a defendant who is not convicted of one of the qualifying offenses enumerated in the statute. Appellant was the driver of a car from which shots were fired killing an occupant of another car. He and the shooter were tried for murder with gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and firearm-use (Pen. Code, § 12022.53, subd. (d)&(e)(1)) allegations. The co-defendant shooter was convicted of murder. Appellant, tried as an aider-abettor, was acquitted of murder, but convicted of the lesser-included offense of voluntary manslaughter (Pen. Code, § 192, subd. (a)). The firearm and gang allegations were found true as to both defendants. Appellant was sentenced to 3 years for the manslaughter conviction, plus 25-life for the firearm enhancement. A ten-year gang enhancement was imposed and stayed (i.e., because appellant was not the shooter). (See People v. Brookfield (2009) 47 Cal.4th 583.) On appeal, appellant argued, inter alia, that the firearm-use allegation had to be stricken because voluntary manslaughter is not an offense enumerated in Penal Code section 12022.53, subdivision (a). Respondent argued that the enhancement applied to appellant, under subdivision (e)(1), because appellant was “a principal” in the murder committed by his co-defendant, and because the co-defendant was “a principal” in an enumerated offense (i.e., murder) within the meaning of subdivision (e)(1). Citing People v. Garcia (2002) 28 Cal.4th 1166, the Court of Appeal rejected respondent’s argument and agreed with appellant that the “offense” referred to in subdivision (e)(1) of section 12022.53 must be an enumerated offense, and the defendant to whom the enhancement is being applied must have been convicted of that enumerated offense. Respondent’s argument turned the principle regarding relative culpability of aiders and abettors versus direct perpetrators “on its head.” Accordingly, the court struck the firearm-use enhancement and directed that the stay on the gang enhancement be lifted.