Does section 12022.5, subdivision (a) of the California Criminal Code apply to the crime of discharging a firearm at a vehicle?

California, United States of America

The following excerpt is from People v. Vidrio, E069872 (Cal. App. 2020):

The People concede the error. We agree. Section 12022.5, subdivision (a), as relevant here, provides: "[A]ny person who personally uses a firearm in the commission of a felony . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." (Italics added.) This "precludes its application to the crime of discharging a firearm at an occupied vehicle." (People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2.)

Accordingly, we will modify the judgments by striking the personal firearm use enhancements to count 3.

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