California, United States of America
The following excerpt is from People v. Silva, E065151 (Cal. App. 2017):
a firearm," as found in section 12022.53, subdivision (b), encompasses the display of an unloaded or inoperable firearm. "[A] defendant 'uses' a firearm by intentionally displaying it in a menacing manner, firing it, or striking or hitting a human being with it. [Citation.]" (People v. Grandy, supra, at p. 42.)
3. Analysis.
Substantial evidence exists to support the jury's true finding of personal use of a firearm enhancement. Prior to attaching the laser to his new gun, defendant turned off the main lights in the garage, using the only the light by the workbench. When the victim returned to the garage, defendant was in handling a loaded gun with the laser attached in a darkened garage. According to the coroner, the bullet that killed the victim had an essentially straight trajectory with only a "[v]ery, very slight downward angle." Its path could have resulted from a person standing in a normal posture and shooting her in the chest. Although defendant testified that the shooting was an accident, the jury could have chosen to disbelieve his testimony, given his extensive experience with guns, his actions and repeated lies at the hospital, Mariela's attempt to remove the gun from the residence, and the absence of any spent casing in the garage. Instead, it was reasonable for the jury to find that defendant wanted to try out his gun using the laser, and so he darkened the garage, used the laser to aim the gun at the victim, and pulled the trigger. Even if defendant believed the weapon was not loaded, this scenario supports a finding he
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intentionally displayed the gun in a menacing manner. (People v. Grandy, supra, 144 Cal.App.4th at p. 42.)
The judgment is affirmed.
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