Walker

The primary question at issue on this appeal is whether a defendant must personally use a firearm in the commission of a charged felony if he is to be subjected to the increased penalties *236 provided by Penal Code section 12022.5. 1 We answer that question in the affirmative but as defendant was sentenced to a life term by virtue of the conviction of the charged offense, such term cannot be increased because of his use of a firearm in the commission of the charged crime.

Defendant John Earl Walker and Cindy Lou Young were charged with murder (§ 187); only defendant is alleged to have used a firearm within the meaning of section 12022.5. A motion to sever was granted and on the day of defendant’s trial, but prior to the selection of a jury, he unsuccessfully moved to substitute counsel. This appeal is from the judgment of conviction of first degree murder (§§ 189, 190) aggravated by the use of the firearm.

The record discloses that in the late evening David Wallace observed Frank Simpson, the victim herein, approach a young woman later identified as Cindy Lou Young. Simpson asked if he could buy her a drink; when she replied that she did not drink, he asked “What do…

Í concur in that portion of the majority opinion which directs the modification of the judgment to reflect the fact that the additional term of imprisonment prescribed under Penal Code section 12022.5 may not be imposed to aggravate a life sentence.

I respectfully dissent, however, from the majority’s principal holding that section 12022.5 applies only to one who personally uses a firearm in the commission of the felonies prescribed in that section. I am in complete disagreement with such a conclusion. In my view, the additional punishment under section 12022.5 may properly be imposed upon an offender whose criminal acts were aided and abetted by a firearm held or fired by an accomplice.

In this connection, I fully concur with the analysis and reasoning of Presiding Justice Kaus in People v. Bush (1975) 50 Cal.App.3d 168 [ 123 Cal.Rptr. 576 ], a recent case which the majority herein, unfortunately, disapprove. As expressed in Bush, “. . . a person can ‘use’ an article without personally handling it. Among the many definitions of the word ‘use’ in Webster’s New International Dictionary (3d ed. 1966) we find: (1) ‘to put into action or serve’; (2) ‘have recourse to or enjoyment…

The primary question at issue on this appeal is whether a defendant must personally use a firearm in the commission of a charged felony if he is to be subjected to the increased penalties provided by Penal Code section 12022.5. [1] We answer that question in the affirmative but as defendant was sentenced to a life term by virtue of the conviction of the charged offense, such term cannot be increased because of his use of a firearm in the commission of the charged crime.

Defendant John Earl Walker and Cindy Lou Young were charged with murder (§ 187); only defendant is alleged to have used a firearm within the meaning of section 12022.5. A motion to sever was granted and on the day of defendant's trial, but prior to the selection of a jury, he unsuccessfully moved to substitute counsel. This appeal is from the judgment of conviction of first degree murder (§§ 189, 190) aggravated by the use of the firearm.

The record discloses that in the late evening David Wallace observed Frank Simpson, the victim herein, approach a young woman later identified as Cindy Lou Young. Simpson asked if he could buy her a drink; when she replied that she did not drink, he asked…