What is the test for a person convicted of a murder committed for the benefit of a criminal street gang and who discharged a firearm in the commission of the crime?

Section 12022.53 establishes mandatory sentence enhancements for persons convicted of specified felonies, including murder, who discharge a firearm in the commission of the offense. ( 12022.53, subds.(b)-(e).) Subdivision (d) of section 12022.53 mandates a consecutive enhancement of 25 years to life for any person who personally and intentionally discharges a firearm causing death in the commission of one of the specified felonies. Subdivision (e)(1) imposes vicarious liability on an aider or abettor who committed the specified offense for the benefit of, at the direction of, or in association with a criminal street gang. (People v. Garcia (2002) 28 Cal.4th 1166, 1171.)

Section 12022.53, subdivisions (d) and (e)(1), read together, require the imposition of a consecutive sentence enhancement of 25 years to life when a defendant is convicted of a murder committed for the benefit of a criminal street gang, and any principal in the offense " 'personally and intentionally discharges a firearm' " that causes death to any person other than an accomplice. (People v. Hernandez (2005) 134 Cal.App.4th 474, 480.)

In order to find an aider and abettor subject to the sentence enhancements of section 12022.53, the aider and abettor must be convicted of the underlying offense (i.e., murder), and the gang enhancement found true. There is no requirement that the principal who intentionally and personally discharged the firearm must be convicted of the offense. (People v. Garcia, supra, 28 Cal.4th at p. 1174.)