Is a failure to instruct that the firearm use must have proximately caused death and the decedent could not be an accomplice?

In the present case, the failure to instruct that the firearm use must have proximately caused death and the decedent could not be an accomplice was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) There is no dispute that the decedent's death was caused by defendant's intentional use of a firearm. Defendant repetitively shot the decedent who was supine upon the ground. There was no dispute that a legal or proximate cause of the decedent's demise were the bullets repeatedly fired into him. Further, there was no evidence that the decedent was an accomplice of defendant in any crime. Under the circumstances, the instructional error was harmless beyond a reasonable doubt.³

[The following portions of the opinion are not to be published.

See post at page 23 where publication is to resume.]

3. Section 12022.53, subdivision (c) firearm use enhancement.