ALVAKADO

Petitioner seeks an order directing the trial court to grant his motion to dismiss an enhancement allegation he “used” a firearm in the commission of a burglary. He agrees the evidence produced at the preliminary hearing showed he was armed during the offense. However, he claims the evidence was insufficient as a matter of law to show he had used the firearm within the meaning of Penal Code section 12022.5, subdivision (a). Accordingly, petitioner seeks extraordinary relief to prohibit a trial on the firearm use allegation. We agree the evidence adduced at the preliminary hearing failed to show any conduct by petitioner to suggest he employed the firearm as an aid to commit the offense. We further agree the evidence of passive exposure of the firearm is insufficient to elevate his activity from mere “arming” to “use.” Accordingly, we will issue the writ as prayed directing the trial court to grant petitioner’s motion to dismiss the Penal Code section 12022.5, subdivision (a) firearm use enhancement allegation attached to the burglary charge.

FACTS AND PROCEEDINGS BELOW

The evidence presented at the preliminary hearing was as follows: On May 27, 2006, Elvis Alvarado (no…