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Name: People v. Zarazua et al.
Case #: C047726
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/15/2008

Under Penal Code section 12022.53, subdivision (d), a defendant can proximately cause injury/death with the discharge of a firearm even if the bullet does not actually strike the victim. This case involved the car chase of two Norteno gang members by the three appellants who were Sureno gang members. During the pursuit, the Surenos fired hanguns at the Norteno vehicle. Despite a stop sign, the Norteno vehicle entered an intersection at approximately 45 miles per hour, and collided with an uninvolved vehicle. The two front seat passengers were knocked unconscious and a three-year-old child in the back seat was killed. Appellants (the Surenos) contested the sufficiency of the evidence for a true finding of the enhancement pursuant to Penal Code section 12022.53, subdivision (d) (personal and intentional discharge of a firearm proximately causing great bodily injury or death). Interpreting the language of section 12022.53, subdivision (d), the court, in the published portion of the opinion, ruled that the statute is worded broadly in such a way that it does not require that a defendant fire a bullet that directly inflicts harm but instead sets up proximate cause as the required nexus between the personal discharge and the death. (People v. Bland (2002) 28 Cal.4th 313; People v. Palmer (2005) 133 Cal.App.4th 1141.) The appellate court found that under the facts of the case, the jury, which was correctly instructed with CALJIC No. 17.19.5, as to proximate cause, properly found defendants liable under section 12022.53, subdivision (d), and that the finding of the enhancement was supported by substantial evidence.