3130. Personally Armed With Deadly Weapon

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 the defendant was personally armed with a deadly weapon 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 deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.

[In deciding whether an object is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed[,] [and] [where the person who possessed the object was going][,] [and] [whether the object was changed from its standard form] [and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.]]

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

A person is armed with a deadly weapon when that person:

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

AND

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

<If there is an issue in the case over whether the defendant was armed with the weapon "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 when the enhancement is charged. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)

Give the bracketed portion that begins with "When deciding whether" if the object is not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v. Godwin (1996) 50 Cal.App.4th 1562, 1573-1574 [58 Cal.Rptr.2d 545].)

In the definition of "armed," the court may give the bracketed phrase "or has a deadly weapon available" on request if the evidence shows that the weapon 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 defendant 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].)

Authority

Enhancement. Pen. Code, § 12022.3.

Deadly Weapon Defined. People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v. Beasley (2003) 105 Cal.App.4th 1078, 1086-1087 [130 Cal.Rptr.2d 717].

Objects With Innocent Uses. People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v. Godwin (1996) 50 Cal.App.4th 1562, 1573-1574 [58 Cal.Rptr.2d 545].

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, 419-422 [38 Cal.Rptr.2d 214]; People v. Wandick (1991) 227 Cal.App.3d 918, 927-928 [278 Cal.Rptr. 274].

Must Be Personally Armed. People v. Rener (1994) 24 Cal.App.4th 258, 267 [29 Cal.Rptr.2d 392]; People v. Reed (1982) 135 Cal.App.3d 149, 152-153 [185 Cal.Rptr. 169].

"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, §§ 311, 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).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.20[7][c], 142.21[1][d][iii] (Matthew Bender).

Related Issues

Penal Code Section 220

A defendant convicted of violating Penal Code section 220 may receive an enhancement under Penal Code section 12022.3 even though the latter statute does not specifically list section 220 as a qualifying offense.

(People v. Rich (2003) 109 Cal.App.4th 255, 261 [134 Cal.Rptr.2d 553].) Section 12022.3 does apply to attempts to commit one of the enumerated offenses, and a conviction for violating section 220, assault with intent to commit a sexual offense, "translates into an attempt to commit" a sexual offense. (People v. Rich, supra, 109 Cal.App.4th at p. 261.)

Multiple Weapons

There is a split in the Court of Appeal over whether a defendant may receive multiple enhancements under Penal Code section 12022.3 if the defendant has multiple weapons in his or her possession during the offense. (People v. Maciel (1985) 169 Cal.App.3d 273, 279 [215 Cal.Rptr. 124] [defendant may only receive one enhancement for each sexual offense, either for being armed with a rifle or for using a knife, but not both]; People v. Stiltner (1982) 132 Cal.App.3d 216, 232 [182 Cal.Rptr. 790] [defendant may receive both enhancement for being armed with a knife and enhancement for using a pistol for each sexual offense].) The court should review the current state of the law before sentencing a defendant to multiple weapons enhancements under Penal Code section 12022.3.

Pepper Spray

In People v. Blake (2004) 117 Cal.App.4th 543, 559 [11 Cal.Rptr.3d 678], the court upheld the jury's determination that pepper spray was a deadly weapon.

(New January 2006)