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Name: People v. Lucero
Case #: D069229
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/18/2016

Trial court properly instructed jury not to consider evidence of defendant's voluntary intoxication in determining the truth of gun use allegations. A jury found Lucero guilty of multiple offenses and found true two gun use allegations (Pen. Code, § 12022.53, subds. (c), (d)). On appeal he argued the trial court erred in instructing the jury not to consider evidence of his voluntary intoxication in deciding the gun use enhancements. Held: Affirmed. Section 12022.53, subdivision (c) provides a sentence enhancement for any person who "personally and intentionally discharges a firearm" during specified felonies; subdivision (d) provides an enhancement for any person…

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Name: Smith v. Hedgpeth
Case #: 11-16858
Court: US Court of Appeals
District 9 Cir
Opinion Date: 02/05/2013

There is no clearly established federal law which requires that sentencing enhancements be considered for purposes of applying the double jeopardy clause of the Fifth Amendment. Petitioner was convicted in California state court of offenses resulting from the beating of his wife. His appeals in state court were rejected. In federal court, petitioner claimed that his conviction for assault with a deadly weapon, together with a great bodily injury enhancement, was a lesser included offense of infliction of corporal injury on a spouse, coupled with a deadly weapon enhancement, in violation of double jeopardy. Held: Affirmed. The double jeopardy clause…

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Name: People v. Ramon
Case #: F054603
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/07/2009

A gang expert's opinion that a defendant committed a crime for the benefit of a gang, without sufficient facts to support such an opinion, is not substantial evidence to support a section 186.22, subdivision (b)(1) gang enhancement. Appellant was a gang member, who was stopped while driving a stolen car with another gang member in the gang's territory. He was convicted of receiving a stolen vehicle, and also of firearm possession offenses for a gun under the driver's seat. A gang expert answered a hypothetical question by saying the crimes would be "a huge benefit in furtherance of the gang,"…

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Name: Alvarado v. Superior Court
Case #: B194139
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 01/16/2007

In the context of Penal Code section 12022.5, subdivision (a) (use of a firearm in commission of a felony), something more than being "armed" is required. A defendant is armed with a weapon if he has it available for use. On the other hand, a gun will be found to be "used" when there is evidence of gun-related conduct coupled with the intent the gun-related action facilitate the crime. (People v. Granados (1996) 49 Cal.App.4th 317.) Here the evidence presented at the preliminary hearing was that defendant, intending to commit suicide by a cop, entered a…

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Name: Jones v. Smith
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/01/2000
Subsequent History: None

The omission of a premeditation charge from a state court attempted murder information, combined with its inclusion in the jury instruction, constituted a variance. Although premeditation was a sentence-enhancing provision under California law on the date petitioner's conviction became final, the discrepancy between the information and the jury instructions was a variance and was harmless beyond a reasonable doubt. Had the omission required an amendment of the information, the omission would have been prejudicial per se. After Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], California's treatment of premeditation as a…

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Name: Harris v. U.S.
Case #: 00-10666
Court: US Supreme Court
District USSup
Opinion Date: 06/24/2002
Subsequent History: Cross-cites: 153 L.Ed.2d 524; 122 S.Ct. 2406

18 U.S.C. section 924(c)(1)(A) increases the statutory minimum punishment for brandishing a firearm during a drug offense. The brandishing is a sentencing factor that does not have to be charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt. Apprendi v. New Jersey (2000) 533 U.S. 466 does not require a different result, because there is a difference between a fact which extends the sentence beyond the statutory maximum, and one which increases the minimum term. McMillan v. Pennsylvania (1986) 477 U.S. 466, holding that brandishing is a sentencing factor, remains good…

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