How have courts interpreted section 12022, subdivision (b)(1) of the California Criminal Code when a minor was convicted of assault with a deadly weapon under an aider and abettor theory?

The minor argues that the court erred in failing to strike the weapon use enhancement as to count 1. He notes that section 12022, subdivision (b) provides in part that "[a]ny person who personally uses a deadly or dangerous weapon in the commission . . . of a felony shall, upon conviction of such felony . . . be punished by an additional term of one year, unless use of a deadly or dangerous weapon is an element of the offense of which he or she was convicted." (Italics added.) The minor cites People v. Summersville (1995) 34 Cal.App.4th 1062 (Summersville) in support of his position.

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In Summersville, the defendant stabbed one man in a car while his accomplice stabbed to death another man in the car. (Summersville, supra, 34 Cal.App.4th at pp. 1065-1066.) The defendant was convicted of two offenses: second degree murder under an aider and abettor theory, and assault with a deadly weapon. (Id. at p. 1065.) The appellate court held that a weapon use enhancement ( 12022, subd. (b)(1)) could not attach to the assault with a deadly weapon conviction "because personal weapon use is an element of section 245, subdivision (a)(1)." (Summersville, at p. 1070, citing People v. McGee (1993) 15 Cal.App.4th 107, 110.)