Masbruch

We here determine the applicability of enhancements under Penal Code section 12022.3, subdivision (a) (§ 12022.3(a)), 1 for “use[]” of a firearm “in the commission of’ a crime, to sex offenses that a defendant commits after initially displaying a firearm. This issue has divided the Courts of Appeal. We conclude that the Court of Appeal here properly found that defendant used a firearm in the commission of rape and sodomy. We therefore affirm the judgment of the Court of Appeal.

I. Facts and Procedural Background

Mary K. and her mother, Marietta K., lived in an apartment complex in Fresno, California. Mary had managed the complex for over 10 years. At *1004 approximately 5 p.m. on April 2, 1991, defendant Richard James Masbruch came to the door to apply for an apartment. Mary gave defendant an application form to fill out and invited him into the apartment to get his name and phone number.

As defendant and Mary walked into the living room, defendant turned around and pointed a gun at her face. He told her to put her hands up and give him her purse. Mary explained she did not have a purse, and defendant asked to see her checkbook. Mary complied. Defendant set the…

I dissent. The record reveals that no substantial evidence supports the verdict finding true the weapons-use enhancements for the sex crimes.

*1015 At the time of the crimes—April 2, 1991—Penal Code section 12022.3, subdivision (a), required an enhancement for certain sex crimes “if the person uses a firearm or any other deadly weapon in the commission of the violation.” (Stats. 1989, ch. 1167, § 3, p. 4529.) “ ‘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.’ ” (People v. Chambers (1972) 7 Cal.3d 666, 672 [ 102 Cal.Rptr. 776 , 498 P.2d 1024 ].) A firearm-use enhancement may be imposed when the assailant “produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.” (Ibid., italics added.)

Multiple sex offenses may be completed seriatim during a single course of conduct. Each is discrete. The effect of this rule is to increase punishment. “Assuming other elements of the offense are present, a statutory violation is generally complete as soon as the requisite ‘penetration,’ ‘touching,’ or contact occurs. We have…