Does section 12022.53(e)(2) of the California Criminal Code apply to a defendant who personally uses or discharges a firearm in the commission of a gang-related crime?

California, United States of America


The following excerpt is from People v. Hernandez, E053563 (Cal. App. 2012):

"Section 12022.53's subdivision (e)(1) has this effect: Ordinarily, section 12022.53's sentence enhancements apply only to personal use or discharge of a firearm in the commission of a statutorily specified offense, but when the offense is committed to benefit a criminal street gang, the statute's additional punishments apply even if, as in this case, the defendant did not personally use or discharge a firearm but another principal did. Section 12022.53(e)(2), however, limits the effect of subdivision (e)(1). A defendant who personally uses or discharges a firearm in the commission of a gang-related offense is subject to both the increased punishment provided for in section 186.22 and the increased punishment provided for in section 12022.53. In contrast, when another principal in the offense uses or discharges a firearm but the defendant does not, there is no imposition of an 'enhancement for participation in a criminal street gang . . . in addition to an enhancement imposed pursuant to' section 12022.53. ( 12022.53(e)(2).)" (People v. Brookfield, supra, 47 Cal.4th at p. 590.)

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