What is the test for section 12022.5 of the California Criminal Code when it comes to determining whether the victim is more dead than if he had been poisoned, smothered or drowned?

California, United States of America


The following excerpt is from People v. Aguilar, 108 Cal.Rptr. 179, 32 Cal.App.3d 478 (Cal. App. 1973):

Assuming defendant's interpretation to be correct, it is, of course, undeniable that the victim of a murder is no more dead, if he had been shot than if he has been poisoned, smothered or drowned. The purpose of the statute is, however, at least partly prophylactic: to cause fewer people to be murdered in the first place. When certain properties of firearms are considered in combination, it becomes obvious that section 12022.5 is based on a rational distinction, even when applied to murder: 1. the disadvantage of the unarmed victim vis-a-vis the murderer who 'has the drop' on him; 2. the peculiarly lethal nature of firearms; and 3. the relative speed with which a potential killer armed with a firearm can execute an intent to kill, once it is formed. (See generally People v. McDaniels, 25 Cal.App.3d 708, 712--716, 102 Cal.Rptr. 444.)

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