I dissent. The record reveals that no substantial evidence supports the verdict finding true the weapons-use enhancements for the sex crimes.
*1015At the time of the crimes—April 2, 1991—Penal Code section 12022.3, subdivision (a), required an enhancement for certain sex crimes “if the person uses a firearm or any other deadly weapon in the commission of the violation.” (Stats. 1989, ch. 1167, § 3, p. 4529.) “ ‘Use’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make instrumental to an end or process,’ and to ‘apply to advantage.’ ” (People v. Chambers (1972) 7 Cal.3d 666, 672 [102 Cal.Rptr. 776, 498 P.2d 1024].) A firearm-use enhancement may be imposed when the assailant “produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies.” (Ibid., italics added.)
Multiple sex offenses may be completed seriatim during a single course of conduct. Each is discrete. The effect of this rule is to increase punishment. “Assuming other elements of the offense are present, a statutory violation is generally complete as soon as the requisite ‘penetration,’ ‘touching,’ or contact occurs. We have explained the underlying rationale as follows: ‘As [Penal Code] section 263 notes with regard to the sufficiency of “penetration” in rape cases, the “essential guilt” of sex offenses lies in the “outrage” to the person and feelings of the victim ....[] The “slight penetration” language confirms that this peculiar “outrage” is deemed to occur each time the victim endures a new, unconsented sexual insertion. The Legislature, by devising a distinctly harsh sentencing scheme, has emphasized the seriousness with which society views each separate unconsented sexual act, even when all are committed on a single occasion.’ ” (People v. Scott (1994) 9 Cal.4th 331, 341 [36 Cal.Rptr.2d 627, 885 P.2d 1040]; see also People v. Jones (1993) 5 Cal.4th 1142, 1145 [22 Cal.Rptr.2d 753, 857 P.2d 1163] [defendant sodomized victim three times and inserted finger in rectum once during an hour-long ordeal and initially was sentenced to thirty-two years’ imprisonment under the “harsh regime of subdivisions (c) or (d) of [Penal Code] section 667.6”].)
But because each such offense is discrete, there must be substantial evidence that defendant used a gun for each. I doubt that a weapon must be brandished each time; under Chambers it need only be “ ‘applied] to advantage.’ ” (7 Cal.3d at p. 672.) Even by that standard, however, there was no gun use during the sex crimes, which occurred essentially at the end of events.
It seems that the crime spree lasted from two hours to two hours and forty-five minutes. At a minimum, it took more than an hour. Initially, defendant displayed a gun to the younger victim in order to rob. She never saw it again. She testified that she feared its presence when she told her mother, the second victim, to comply with defendant’s orders, but later *1016began to wonder whether it might be broken and thought he might knife them. By that time defendant, having confined both victims to the kitchen, had roamed around the house repeatedly, making perhaps more than 20 excursions to find valuables. Then he came back, committed rape and sodomy against the daughter, and departed soon afterward.
Shying away from the discrete nature of sex offenses, the majority hold that “the jury may consider a ‘video’ of the entire encounter; it is not limited to a ‘snapshot’ of the moments immediately preceding a sex offense.” (Maj. opn., ante, at p. 1011.) This statement generates colorful rhetoric but only the vaguest legal rule. We can imagine how perplexed jurors would be if the court instructed them according to that concept.
“Because the proceeding on the enhancement, although not intrinsic to the question of guilt or innocence, had the ‘ “hallmarks of a trial on guilt or innocence” ’ ... the state was required to prove the enhancement allegations beyond a reasonable doubt . . . .” (People v. Santamaria (1994) 8 Cal.4th 903, 939 [35 Cal.Rptr.2d 624, 884 P.2d 81] (appen. to conc. and dis. opn. of Mosk, J.) quoting opn. of Werdegar, J., in the Court of Appeal therein.) This burden the prosecution did not meet. The victims never testified that the gun was used at the time of the sex crimes. There is no evidence that the gun was even present when the daughter was sexually assaulted—defendant could have placed it in a car or otherwise disposed of it. The majority declare that “a jury could reasonably infer that defendant retained the firearm after using it to coerce Mary [the victim of the sex crimes]” (maj. opn., ante, at p. 1012), but it could only do so if presented with evidence that would justify such an inference, otherwise the assumption unconstitutionally shifts the burden of proof to defendant. The trial testimony reveals no evidence from which a jury could draw that inference. I would strike the two 4-year enhancements imposed under former Penal Code section 12022.3, subdivision (a).