Granado

Penal Code section 12022.5, subdivision (a), imposes 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, we 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…