People v. Burns 110 Mich. App. 680

Bashara, P.J.

Defendant appeals his plea-based conviction for violation of the felony-firearm statute, MCL 750.227b; MSA 28.424(2). He contends that there was an insufficient factual basis presented at the guilty-plea proceeding to support the conviction. GCR 1963, 785.7(3)(a). The prosecutor concedes error.

We have reviewed the transcript in light of People v Johnson, 411 Mich 50; 303 NW2d 442 (1981). In that case, the Court stated:

"To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one’s possession during the commission of a *682felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. See People v Doemer, 35 Mich App 149; 192 NW2d 330 (1971); People v Francis, 71 Cal 2d 66; 450 P2d 591; 75 Cal Rptr 199 (1969).

"In neither of the instant cases does the record show that the defendant assisted the accomplice to obtain or retain possession of the firearm which the accomplice possessed during the commission of the felony.” Johnson, supra, 54.

The facts in the present case do not appear to be distinguishable from those presented in Johnson. Accordingly, the matter is remanded for further proceedings on the felony-firearm charge. Although the defendant has raised no issue with regard to the other convictions, our review of the transcript reveals no other reversible error. We do not retain jurisdiction.

J. H. Gillis, J., concurred.

V. J. Brennan, J.

(dissenting). I respectfully dissent from my colleagues’ opinion on the necessity of remanding this case in order for the prosecutor to supply the missing element. Rather, I am persuaded that the guilty plea transcript provides a sufficient factual basis from which an inculpa-tory inference can reasonably be drawn to sustain defendant’s voluntary plea of guilty to the felony-firearm charge as an aider and abettor. Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975).

Involved in the instant case is defendant’s plea of guilty to three counts of first-degree criminal sexual conduct, one count of kidnapping, one count of armed robbery and one count of violating the felony-firearm statute. The defendant’s recital, as evidenced by the guilty plea transcript, establishes *683the following facts: the victim was abducted at gunpoint, placed into a car driven by the defendant, driven from place to place and eventually driven to a field where she was raped by defendant, gang-raped by codefendants, subjected to acts of fellatio, and robbed.

The defendant further testified that all of the foregoing was accomplished through the constant use of a gun whereby the victim was forced to submit to this series of on-going criminal activities. Although defendant stated he didn’t personally have possession of the gun, he did unequivocally testify that he at all times knew of the presence of the gun, its use in accomplishing the criminal acts and that he "assisted” LaBaron, the accomplice who held the gun.

On this record, there is no question in my mind but that the defendant’s testimony establishes that he aided and abetted the accomplice in retaining possession of the gun. At all times, he was aware of the gun, consented to the codefendant’s possession of the gun, actually assisted the codefendant who had physical possession of the gun and shared in the criminal purpose for which the gun was used. I am persuaded that the defendant’s prolonged acquiescence to the known use of the gun over this extended period of time qualifies to establish the requisite factual basis by which a jury could reasonably infer that defendant aided and abetted the accomplice in the use of the firearm during this series of on-going felonies. Hence, on this record, defendant’s felony-firearm conviction should be affirmed and a remand is unnecessary.