Opinion
Penal Code section 12022.5, subdivision (a), 1 imрoses a sentence enhancement on any person who “personally uses a firearm in the commission or attempted commission of a felony.” Does this “use enhancement” apply to a defendant who displays a handgun during the attempted robbery of two people, but who neither discharges the gun, nor points it at the victims, nor utters any verbal threats? What is the legal effect of such a display if one of the victims does not see the gun or otherwise know of its presence? Although a few courts have suggested the enhancement will not lie in these circumstances, wе find no statutory or other basis for that conclusion. Accordingly, we will uphold the trial court’s imposition of use enhancements as to both victims.
Background
Defendant Joseph Philip Granado was charged in two counts with the attempted robberies of Walter Calderon and Wilfredo Calderon and, as to each count, the personal use of a firearm warranting a sentence enhancement under section 12022.5, subdivision (a).
At trial Walter Calderon testified that on December 5, 1993, he and his brother Wilfredo were walking on Monument Boulevard in Concord when they became aware that defendant and another man were following them. Defendant repeatedly demanded money. Eventually he and his companion stepped in front of the brothers and turned to face them, blocking their progress. Wilfredo asked defendant “why was he asking us for money when we didn’t have money for him.” Defendant’s companion pulled a “great big machete” from a sheath. Defendant took a small black automatic handgun “[f]rom his waist.” At this moment—or perhaps before it—Wilfredo “took off running.” The man with the machete chased him.
Holding the gun in front of himself, but without pointing it at anyone, defendant persisted in demanding mоney from Walter. Walter, who was *321 afraid something would happen to him or his brother, “got ready to give him the money.” Defendant put the gun back in his waistband. About this time, however, Walter heard Wilfredo yelling that there were police nearby. He decided to hold back the money he had been preparing to give defendant. Defendant grabbed Walter by the shirt, tried to pull him to the ground, and punched him. Walter slipped from the shirt. The man with the machete came running back, saying, “Let’s go. The police is here.” He and defendant ran away. Shortly thereafter, police officers apprеhended defendant. At the police station he was heard to say, “I tried to rob someone.”
The court instructed the jury, in the language of CALJIC No. 17.19, as follows: “The term ‘used a firearm,’ as used in this instruction, means to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it.” During deliberations the jury sent a note to the court asking whether both victims had to be aware of the gun for defendant to have used a gun as to both. Over defense objection, the court replied, “No.”
The jury convicted defendant on both counts of attempted robbery and sustained the аllegations that, as to both counts, he personally used a firearm within the meaning of section 12022.5, subdivision (a). The court sentenced him to mitigated and concurrent terms totaling four years and four months in state prison.
This appeal followed.
Analysis
I.
The central issue is whether the jury properly found defendant to be a “person who personally use[d] a firearm in the commission” of the charged attempted robberies. 2 According to the evidence, as defendant concedes, he *322 took a gun from his waistband while standing within a few feet of Walter Calderon and displayed it while demanding money. Whether this constitutes “personal use” of a gun is a question primarily of statutory meaning.
Nothing in the language of section 12022.5(a) discloses a legislative intent to limit its application to situations where the gun is pointed at the victim or the defendant issues explicit threats of harm. “ ‘Use’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’ (Webster’s New Intenat. Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that ‘uses’ be broadly construed.”
(People
v.
Chambers
(1972)
Defendant acknowledges this broad interpretive directive, but nonetheless discerns in the cases a rule which precludes a finding of use, based on the display of a firearm, unless the gun is pointed at a person or fired, or the display is accompanied by verbal threats. With one apparent exception, the cases cited by defendant are only obliquely relevant to this issue. The exception is
People
v.
Jacobs
(1987)
In Jacobs the defendant, during a test drive, instructed an auto salesman to get out of the car. When the salesman refused, the defendant said, “ T have a gun and I don’t want to use it.’ ” (193 Cal.App.3d at pp. 378-379.) When the salesman exhibited disbelief by reaching for the keys, the defendant reached into his jacket and audibly cocked an unseen gun. (Id. at p. 379.) The jury found a gun “use.” (Id. at p. 378.) The Court of Appeal affirmed. The pivotal issue was not whether the defendant’s words or conduct amounted to such a “threat” as would support the enhancement, or even whether a distinct “threat” was necessary. 5 The question, instead, was whether the defendant’s conduct amounted to a “display” of the gun. In that regard, the court declared, “a firearm is displayed when, by sensory perception, the victim is made aware of its presence.” (Id. at p. 381.) The court went on, howevеr, to issue the dictum on which defendant relies: “Once displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a use of that firearm proscribed by Penal Code sections 12022.5 and 1203.06, subdivision (a)(1).” (Ibid.)
The court in
Jacobs
cited no authority in support of this statement (
A pattern of fact situations triggering a given rule in previous cases does not automatically preclude the application of the same rule to new or different fact situations. The contrary approach imрlicitly followed in Jacobs suffers from several flaws, of which the most simply stated is this: Since none of the cited cases involved a materially similar fact situation, or purported to address the issue in question, none of them could be authority for the question on which the Jacobs court declaimed. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 783, p. 753.)
Nor were these cases somehow transformed into relevant authority through the decision in
Hays,
which illustrates a quite different point. The defendant there carried a sawed-off rifle on a sling during the commission of a robbery. There was no evidence of the defendant’s handling the rifle, let alone “displaying it in a menacing manner.”
(Hays, supra,
The holding in
Hays
reflects a principle under which a finding of weapon use is precluded if the defendant’s
conduct
with respect to the weapon appears to be purely incidental to the crime. In
Hays
the evidence was insufficient because, even though the gun was exposed to the victim’s view, the exposure was not an act in furtherance of the crime, but a mere incident of possession.
7
The court drew the term “passive display” from a discussion in which the Supreme Court had observed, “[A]rmed offenders frequently
*325
may passively display their firearms, without actually using them to facilitate the commission of their offenses.”
(People
v.
Nelums
(1982)
In our view, if the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5(a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).
Here there was no reasonable explanation for defendant’s conduct other than a desire to facilitate the crime. After the victims ignored his initial demands for money, he removed the gun from his waistband, repeated his demands, and returned the gun to his waistband. This was not conduct incidental to possession. The most obvious explanation, indeed the only apparent one, was a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offensе. (See
People
v.
Johnson, supra,
*326 II.
Defendant next urges us to set aside the use finding as to the victim Wilfredo because, he contends, the evidence did not establish, and the jury was not likely to find, any awareness by Wilfredo that a gun was present.
Much the same reasoning we have already articulated compels us to reject a rule which would preclude a finding of gun use in an attempted robbery unless the victim were shown to have been aware of the gun’s presence. Again, such a requirement finds no support in the statutory language, and we know of no well-considered case which has endorsed or applied it.
The strongest authority for defendant’s position appears to be
People
v.
James, supra,
As with
Jacobs,
we endorse the
result
in James: the court set aside a finding of weaрons use where the victim did not claim to have seen the weapon, and in fact did not testify about it “at all.”
(People
v.
James, supra,
As courts have recognized (e.g.,
People
v.
Nelums, supra,
We believe section 12022.5(a) was intended in significant part to constrain a would-be robber in defendant’s position to
keep the gun in his waistband.
So long as he did so, he would be subject only to the enhancement for being armed. But once he intentionally deployed the gun in furtherance of the offense, he became subject to a use enhancement. To excuse the defendant from this consequence merely because the victim lacked actual knowledge of the gun’s deployment would limit the statute’s deterrent effect for little if any discernible reason. (See
People
v.
Fierro
(1991)
Defendant seeks to draw support for the opposite view from the Supreme Court’s remark in Chambers, supra, 1 Cal.3d 666, 672, that in order to sustain a gun-use enhancement, “there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force . . . .” The implication is that Chambers requires actual fear of the gun on the part of the victim—an impossibility without knowledge of the gun. In light of the decision as a whole, however, we do not believe the quoted sentence is properly understood to require proof of actual fear or knowledge. It is more reasonably understood to mean that the conduct must be such as “produces a fear of harm or force" on the part of a hypothetical, reasonable observer—such as a juror looking back at the event through the lens of the evidence at trial. (Ibid.)
Defendant’s contrary interpretation is incompatible with the injunction in
Chambers
itself that the statute must “be broadly construed.” (
The defendant in
Chambers
had simply “pointed a gun at the victim and demanded money.” (
In our view the only mental state requirement properly imposed on section 12022.5(a) enhancements is the
defendant’s intent
to use the gun in furtherance of the crime.
(People
v.
Johnson, supra,
III.
Defendant’s brief suggests a further issue, which the parties fail to distinguish from the asserted requirement of knowledge as an element of the enhancement: whether a gun is “used” if the victim escapes the would-be robber before the robber produces the gun. The question is not the victim’s mental state as such, but whether a gun has been used “in the commission” of an attempted robbery which, arguably, was terminated by the victim’s flight, before any gun use occurred.
Intriguing as this issue may be, we need not reach it here, for on any view of the facts necessarily accepted by the jury, the attempted robbery of Wilfredo had not terminated when the gun was “used,” and the menacing display of the gun, whether seen by Wilfredo or not, was a use “in the commission” of the ongoing attempt against him.
When Wilfredo turned and fled from the site of the original confrontation he was pursued by defendant’s machete-wielding companion. This left Walter and defendant behind. Accepting defendant’s view of the evidence, the use of the gun took place during this period. Under these facts, both attempted robberies—that of Wilfrеdo and that of Walter—continued throughout the time of the gun use. (See
People
v.
Taylor
(1995)
Of course, under this view of the facts the gun was displayed only to Walter, not to Wilfredo. However, a gun may be used “ ‘in the commission
*330
of ’ ” a given crime even if the use is directed toward someone other than the victim of that crime. In
People
v.
Fierro, supra,
This principle, or a narrower corollary of it, has been recognized elsewhere. (See
People
v.
Berry
(1993)
Again, under the statutory language the test for weapon use is functional, not formulaic. The central question is whether the defendant personally deployed the weapon, or acted as if to do so, in furtherance of the crime. The evidence here was more than sufficient to support the jury’s affirmative answer. Even if Wilfredo did not notice the gun, it was deployed to control the conduct of both victims. At the very least, it “effectively glued” Walter to his location
(People
v.
Johnson, supra,
*331 The judgment is affirmed.
Haerle, Acting P. J., and Hitchens, J., * concurred.
Appellant’s petition for review by the Supreme Court was denied January 15, 1997.
Notes
All further statutory references are to the Penal Code.
As in effect in 1994, when the offenses took place, the governing statute provided, “Except as provided in subdivisions (b) and (c), any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or аttempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years, unless use of a firearm is an element of the offense of which he or she was convicted. However, if the person has been convicted of carjacking or attempted carjacking, the additional term shall be four, five, or six years. The court shall order imposition of the middle term unless there are circumstances in *322 aggravation or mitigation. The court shall state its reasons for its enhancement choice on the record at the time of sentencing.” (Former § 12022.5, subd. (a).)
The statute has since been amended to, among other things, divide the quoted provision into subparagraphs (a)(1) and (a)(2). (Stats. 1995, ch. 377, § 9; see also Stats. 1st Ex. Sess. 1993-1994, ch. 31, § 3; Stats. 1st Ex. Sess. 1993-1994, ch. 33, § 6.)
Throughout this opinion we will refer to the quoted provision as “section 12022.5(a),” disregarding the subparagraphs.
We have found only one statutory provision which constrains the concept of firearm “use” to anything narrower than its common meaning: Section 1203.06, subdivision (a)(1), declares ineligible for probation any defendant “who personally used a firearm” in the commission of certain specified offenses. Subdivision (b)(3) then provides, “As used in subdivision (a), ‘used a firearm* means to display a firearm in a menacing manner, to intentionally fire it, or to intentionally strike or hit a human being with it.” Although the applicability of this definition is by its own terms limited to the statute of which it is a part, it has been declared applicable to section 12022.5.
(People
v.
Johnson
(1995)
In
People
v.
James
(1989)
Indeed the court’s apparent assumption that the defendant’s words constituted a sufficient “threat” illustrates the pointless analytical perplexities such a requirement would introduce. The
literal
meaning of the defendant’s words there (“ T have a gun and I
don’t
want to use it’ ”) was not that he would shoot the victim, but rather the reverse. (
On a separate count for assault, the court found sufficient evidence to support a “use” enhancement
(Hays, supra,
The court also noted an implied legislative distinction between firearm “use” under 12022.5(a), and being “ ‘armed’ with a firearm” in the commission of a felony, which warrants a distinct enhancement under section 12022, subdivision (a) (§ 12022(a)).
(Hays, supra,
Contrary to defendant’s contentions, the logical necessity of distinguishing “use” from “arming” supplies no basis for imposing the kind of categorical extrastatutory limitations defendant proposes. The litmus test for the distinction is functional: did the defendant take
*325
some
action
with the gun
in furtherance of the commission
of the crime? If so the gun was “used,” and the more severe penalty of section 12022.5(a) applies. If, on the other hand, the defendant engaged in no weapons-related conduct, or such conduct was incidental and unrelated to the offense, no “use” occurred, and only the lesser enhancement of section 12022(a) applies. (See
People
v.
Elliott
(1977)
We regret the use of the term “passive display” to describe this principle. It is, among other things, an oxymoron. To “display” something is “to put. . . [it] before the view,” “to make [it] evident,” or to “exhibit [it] ostentatiously." (Webster’s Ninth New Collegiate Dict. (1984) p. 365, italics added.) A “display,” in the sense that a gun is displayed by a would-be robber (as distinct from a display in a museum), is an act. To speak of a passive act is, of course, self-contradictory. The situation in question—where a weapon is or becomes visible as an incident of possession, or of other circumstances or events unconnected with the commission of the offense—would more accurately be described by a term such as “incidental exposure.”
“The next question is, whether the robbery and putting in jeopardy the life of the driver was done with dangerous weapons; pistols are such weapons; it is a use of them to point them at another, accompanied with words which denote an intention of injury, or without words, if they are shown and so held as to plainly indicate a design to do so in сase of resistance or refusal to consent to the objects intended to be effected by their production and display.
It need not be pointed at the driver, if intended to be used in case of resistance or refusal to surrender the mail; or if it was seen by the driver, and he had reasonable cause for believing it was to be so used . . . .” (United States
v.
Wilson, supra,
Indeed we believe a gun use enhancement would be wholly warranted if the defendant deployed a gun to further the holdup of a blind person—even if the victim never learned of the gun’s presence. As another court said with resрect to the offense of publicly exhibiting a firearm in a rude or offensive manner, “The thrust of the offense is to deter the public exhibition of weapons in a context of potentially volatile confrontations. The victim’s unawareness of the weapon does little to mitigate the danger inherent in such situations.”
(People
v.
McKinzie
(1986)
(Cf.
People
v.
Masbruch
(1996)
Defendant also contends that the trial court was required to instruct sua sponte on the “lesser included enhancement” of being armed with a firearm under sеction 12022(a). (See
People
v.
Turner, supra,
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.