Does section 12022.5, subdivision (a) of the California Penal Code, section 120 22.5(1) of Section 1385(2) apply to a defendant who personally uses a firearm in the commission of a felony or attempted felony?

California, United States of America


The following excerpt is from People v. Frausto, G038362 (Cal. App. 4/25/2008), G038362 (Cal. App. 2008):

Section 12022.5, subdivision (a) provides: "Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense." Subdivision (c) of section 12022.5 further provides: "Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." (People v. Herrera (1998) 67 Cal.App.4th 987, 988-989 ["It is well established that a trial court has no discretion under Penal Code section 1385 to strike the punishment for a personal firearm use enhancement"].)

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