Targeting Gang Crime: An Analysis of California Penal Code Section 12022.53 and Vicarious Liability for Gang Members


In this Comment, Jennifer Walwyn examines California Penal Code section 12022.53 and the controversy among the California Courts of Appeal surrounding the vicarious application of firearm sentence enhancements to aiders and abettors of gang crime. She explores the traditional doctrines of conspiracy and aider-and-abettor liability and contrasts those doctrines with the operation of statutory sentence enhancements. She proceeds to analyze the case of People v. Garcia, on review in the California Supreme Court, in which the California Court of Appeal required conviction of the actual shooter as a predicate for enhancing the sentence of an aiding or abetting gang member. She then contrasts Garcia with differing applications by other divisions of the California Courts of Appeal as to whether vicarious liability can be a trigger for enhancing gang members' sentences. Concluding that the interpretation of the Garcia court results in unintended consequences and an unadministrable system, she proposes a reading of the statute that permits vicarious sentence enhancements for aiding or abetting gang members when the aider intends to aid an enumerated target offense for the benefit of a criminal street gang and knows that a natural and probable consequence of that offense is personal use or discharge of a firearm by a co-principal.

About the Author

Symposium Editor, UCLA Law Review, Volume 50. J.D. candidate, UCLA School of Law, 2003; B.S., Cornell University, 2000.

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