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PG IV(D) Does Use of a Firearm Require Specific Intent?
While it has been held that to be armed with a firearm (PC 12022) the defendant must possess it “with the intent to use the weapon as a means of offense or defense” (People v. Hays (83) 147 CA3d 534, 545 [195 CR 252] citing People v. Pheaster (63) 215 CA2d 756 [30 CR 363]; see also CJ 17.15), no case has directly considered whether “use” of a firearm (PC 12022.5) requires specific intent. The CALJIC instruction (CJ 17.19) makes no reference to specific intent and defines use of a firearm 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.” While this instruction has been held to be a correct statement of the law (see e.g., People v. Reaves (74) 42 CA3d 852, 857 [117 CR 163]), this is not dispositive of the specific intent issue because that issue has not been expressly addressed and cases are not authority for propositions not considered. (People v. Dillon (83) 34 C3d 441, 473-74 [194 CR 390].)
The intent required by PC 12022.5 hinges upon the meaning of the term “used.” In People v. Chambers (72) 7 C3d 666 [102 CR 776], the court observed that “the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. ‘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.’ [Citation].” [Emphasis added.] (Id. at 672.) This definition suggests that use of a firearm involves specific intent because the firearm must be used “to carry out the purpose” of “aiding the commission of one of the specified felonies.”
Such a construction is also consistent with other interpretations of the term “use.” For example, People v. Southack (52) 39 C2d 578 [248 P2d 12] held that the display of a firearm did not necessarily constitute a use upon the victim in light of evidence from which it could have been found that the defendant’s only intent was to protect himself should the victim attempt an unlawful entry of the defendant’s home. (Southack 39 C2d at 591; see also Chambers 7 C3d at 673.) [Southack interpreted PC 1203 which Chambers held to be consistent with PC 12022.5. (Chambers 7 C3d at 674.)]
In People v. Hays (83) 147 CA3d 534, 548-49 [195 CR 252], the court found insufficient evidence for use of a firearm where the defendant simply displayed a firearm by wearing it without making any statements or otherwise indicating that the gun was being used for the purpose of creating fear in order to facilitate the commission of the offense. It is obvious that the insufficiency was not in the evidence of the actus reus (i.e. the passive display) but rather as to the mens rea. For example, if Hays had accompanied the very same passive display with a threat to use the weapon to achieve his criminal purpose or if Hays had confessed that he wore the gun for the purpose of frightening the victims into compliance, then the means rea element of the offense would have been satisfied.
In People v. Fierro (91) 1 C4th 173, 226-27 [3 CR2d 426] the court, in considering whether a gun use enhancement may be founded upon acts committed after the crime, held that “the jury could reasonably have inferred that defendant used the gun against the murder victim to facilitate his escape or to prevent his identification as the robber of [the victim].” [Emphasis added.] (Fierro 1 C4th at 227; see also People v. Johnson (74) 38 CA3d 1, 12 [112 CR 834] [“A weapon is used … when it is pointed at a victim to enforce a demand.” (Emphasis added.)].)
In sum, the display of a firearm is not the “use” of a firearm unless it was displayed for the purpose of aiding the commission of the offense. Thus, since the term “use” includes an intent to achieve a further purpose, PC 12022.5 requires a specific intent upon which the jury should be instructed and which may be negated by intoxication or mental impairment. [Consistent with this interpretation, the court in People v. Walker (88) 47 C3d 605, 634 [253 CR 863] noted without comment that the court instructed upon the concurrence of act and specific intent with reference to the firearm use enhancement.]
