3115. Armed With Firearm, Pen. Code, § 12022(a)(1)

If you find the defendant guilty of the crime[s] charged in Count[s] [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crime[s] of <insert name[s] of alleged lesser offense[s]>], you must then decide whether[, for each crime,] the People have proved the additional allegation that one of the principals was armed with a firearm during the commission [or attempted commission] of that crime. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]

A person is a principal in a crime if he or she directly commits [or attempts to commit] the crime or if he or she aids and abets someone else who commits [or attempts to commit] the crime.

[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]

[The term firearm is defined in another instruction.]

[A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.] [A firearm does not need to be loaded.]

A principal is armed with a firearm when that person:

1. Carries a firearm [or has a firearm available] for use in either offense or defense;

AND

2. Knows that he or she is carrying the firearm [or has it available].

<If there is an issue in the case over whether the principal was armed with the firearm "during the commission of" the offense, see Bench Notes.>

The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

The court should give the bracketed definition of "firearm" unless the court has already given the definition in other instructions. In such cases, the court may give the bracketed sentence stating that the term is defined elsewhere.

When two or more defendants are charged with an arming enhancement for the same offense, the preferred approach is for the court to provide the jury with a separate verdict form for the enhancement for each defendant. (People v. Paul (1998) 18 Cal.4th 698, 708 [76 Cal.Rptr.2d 660, 958 P.2d 412].) However, this procedure is not required. (Id. at p. 705.)

In the definition of "armed," the court may give the bracketed phrase "or has a firearm available" on request if the evidence shows that the firearm was at the scene of the alleged crime and "available to the defendant to use in furtherance of the underlying felony." (People v. Marvin Bland (1995) 10 Cal.4th 991, 997-998 [43 Cal.Rptr.2d 77, 898 P.2d 391]; see also People v. Wandick (1991) 227 Cal.App.3d 918, 927-928 [278 Cal.Rptr. 274] [language of instruction approved; sufficient evidence defendant had firearm available for use]; People v. Jackson (1995) 32 Cal.App.4th 411, 419-422 [38 Cal.Rptr.2d 214] [evidence that firearm was two blocks away from scene of rape insufficient to show available to defendant].)

If the case involves an issue of whether the principal was armed "during the commission of" the offense, the court may give CALCRIM No. 3261, During Commission of Felony: Defined—Escape Rule. (See People v. Jones (2001) 25 Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)

If there is evidence that the defendant was an aider and abettor, give the appropriate instructions on aider and abettor liability, CALCRIM Nos. 400- 410.

Authority

Enhancement. Pen. Code, § 12022(a)(1).

Principal Defined. Pen. Code, § 31.

Firearm Defined. Pen. Code, § 12001(b).

Armed. People v. Marvin Bland (1995) 10 Cal.4th 991, 997-998 [43 Cal.Rptr.2d 77, 898 P.2d 391]; People v. Jackson (1995) 32 Cal.App.4th 411 [38 Cal.Rptr.2d 214], 419-422; People v. Wandick (1991) 227 Cal.App.3d 918, 927-928 [278 Cal.Rptr. 274].

Firearm Need Not Be Operable. People v. Nelums (1982) 31 Cal.3d 355, 360 [182 Cal.Rptr. 515, 644 P.2d 201].

Firearm Need Not Be Loaded. See People v. Steele (1991) 235 Cal.App.3d 788, 791-795 [286 Cal.Rptr. 887].

"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [104 Cal.Rptr.2d 753, 18 P.3d 673]; People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 320, 329.

5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.

5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.31 (Matthew Bender).

Related Issues

Defendant Need Not Know Principal Armed

For an enhancement charged under Penal Code section 12022(a) where the prosecution is pursuing vicarious liability, it is not necessary for the prosecution to prove that the defendant knew that the principal was armed. (People v. Overten (1994) 28 Cal.App.4th 1497, 1501 [34 Cal.Rptr.2d 232].)

Conspiracy

A defendant convicted of conspiracy may also receive an enhancement for being armed during the conspiracy, regardless of whether the defendant is convicted of the offense alleged to be the target of the conspiracy. (People v. Becker (2000) 83 Cal.App.4th 294, 298 [99 Cal.Rptr.2d 354].)

(New January 2006)