Section 12022.5 California Penal Code Case
In People v. Najera, supra, 8 Cal. 3d at p. 504, the defendant was charged with robbery. the information further alleged defendant "was 'armed with a deadly weapon, to-wit, a gun.'" (Id. at p. 506.)
The evidence established the defendant used a firearm during a robbery. (Id. at p. 507.)
However, the information did not allege a violation of section 12022.5. (Id. at p. 509, fn. 4.)
The court first held the necessary firearm use finding had to be made by the jury, as trier of fact, and not simply by the trial judge. ( People v. Najera, supra, 8 Cal. 3d at pp. 509-510.)
Since the prosecution failed to present the issue to the jury, the court concluded "the People waived application of section 12022.5 by failing to have the matter resolved at trial." (Id. at p. 512.)
In People v. Johnson (1995) 38 Cal.App.4th 1315, 1321, the appellate court concluded that defendant's act of moving a gun from his waistband to his hand, during false imprisonment of the victim and child endangerment of their daughter, even if he did not point it at the victim, was an intentional act of a menacing display of a gun for purposes of section 12022.5, subdivision (a), adding, "[The victim] was terrified of what defendant might do with the gun.
That fear, for herself and her daughter [who defendant was holding with his other hand], effectively glued [the victim] to her chair. No other purpose could be served by defendant moving the gun from his waistband to his hand. In short, the gun would and did ensure that [the victim] became a captive [*16] audience to defendant . . . ."