Under California Penal Code 12022.53(e) PC, the defendant can get a penalty enhancement, if the jury finds that it was committed a felony for the benefit of a street gang and that a principal used or intentionally discharged a firearm in the offense.
Based on the following facts, the prosecution must prove this allegation:
1. Someone who was a principal in the crime personally used or discharged a firearm during the commission or attempted commission of the crime;
2. That person intended to discharge the firearm;
3. That person’s act caused great bodily injury to or the death of another person who was not an accomplice to the crime.
A person is considered to be a principal in a crime if:
a) he or she directly commits or attempts to commit the crime;
b) he or she aids and abets someone else who commits or attempts to commit the crime.
A principal is considered to personally use a firearm if he or she intentionally:
a) Displays the firearm in a menacing manner;
b) Hits someone with the firearm;
c) Fires the firearm.
It has to be noted that it is not required a firearm to be in working order, it is enough if it was designed to shoot and appears capable of shooting. Additionally, it has not to be loaded.
The prosecution has the burden of proving each allegation beyond a reasonable doubt under California Penal Code 12022.53(e) PC.
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