1402. Gang-Related Firearm Enhancement
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]>] and you find that the defendant committed (that/those) crime[s] for the benefit of, at the direction of, or in association with a criminal street gang with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether[, for each crime,] the People have proved the additional allegation that one of the principals (personally used/personally and intentionally discharged) a firearm during that crime [and caused (great bodily injury/ [or] death)]. [You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime.]
To prove this allegation, the People must prove that:
[1.] Someone who was a principal in the crime personally (used/discharged) a firearm during the commission [or attempted commission] of the crime(./;)
[2. That person intended to discharge the firearm(./;)] [AND 3. That person's act caused (great bodily injury to/ [or] the death of) another person [who was not an accomplice to the 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 personally uses a firearm if he or she intentionally does any of the following:
1. Displays the firearm in a menacing manner.
2. Hits someone with the firearm.
3. Fires the firearm.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death) is the direct, natural, and probable consequence of the act and the (injury/ [or] death) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.]
[There may be more than one cause of (great bodily injury/ [or] death). An act causes (injury/ [or] death) only if it is a substantial factor in causing the (injury/ [or] death). A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the (injury/ [or] death).]
[A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. A person is subject to prosecution if he or she committed the crime or if:
1. He or she knew of the criminal purpose of the person who committed the crime;
2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).]
<If there is an issue in the case over whether the defendant used 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.
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].)
In order for the defendant to receive an enhancement under Penal Code section 12022.53(e), the jury must find both that the defendant committed a felony for the benefit of a street gang and that a principal used or intentionally discharged a firearm in the offense. Thus, the court must give CALCRIM No. 1401, Felony Committed for Benefit of Criminal Street Gang, with this instruction and the jury must find both allegations have been proved before the enhancement may be applied.
In this instruction, the court must select the appropriate options based on whether the prosecution alleges that the principal used the firearm, intentionally discharged the firearm, or intentionally discharged the firearm causing great bodily injury or death. The court should review CALCRIM Nos. 3146, 3148, and 3149 for guidance. Give the bracketed definition of "personally used" only if the prosecution specifically alleges that the principal "personally used" the firearm. Do not give the bracketed definition of "personally used" if the prosecution alleges intentional discharge or intentional discharge causing great bodily injury or death.
If causation is at issue, the court has a sua sponte duty to instruct on proximate cause (People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335 [121 Cal.Rptr.2d 546, 48 P.3d 1107]); give the bracketed paragraph that begins with "An act causes . . . ." If there is evidence of multiple potential causes, the court should also give the bracketed paragraph that begins with "There may be more than one cause . . . ." (Id. at pp. 335-338.)
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.
If the case involves an issue of whether the principal used the weapon "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, in the elements, the court gives the bracketed phrase "who was not an accomplice to the crime," the court should also give the bracketed definition of "accomplice." (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322].) Additional paragraphs providing further explanation of the definition of "accomplice" are contained in CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice. The court should review that instruction and determine whether any of these additional paragraphs should be given.
Enhancement. Pen. Code, § 12022.53(e).
Vicarious Liability Under Subdivision (e). People v. Garcia (2002) 28 Cal.4th 1166, 1171 [124 Cal.Rptr.2d 464, 52 P.3d 648]; People v. Gonzales (2001) 87 Cal.App.4th 1, 12 [104 Cal.Rptr.2d 247].
Principal Defined. Pen. Code, § 31.
Firearm Defined. Pen. Code, § 12001(b).
Personally Uses. People v. Marvin Bland (1995) 10 Cal.4th 991, 997 [43 Cal.Rptr.2d 77, 898 P.2d 391]; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319-1320 [45 Cal.Rptr.2d 602]; see also Pen. Code, § 1203.06(b)(3).
"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [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].
Proximate Cause. People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335-338 [121 Cal.Rptr.2d 546, 48 P.3d 1107].
Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990) 51 Cal.3d 72, 90-91 [270 Cal.Rptr. 817, 793 P.2d 23].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 322.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, § 91.30 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.03 (Matthew Bender).
Principal Need Not Be Convicted
It is not necessary that the principal who actually used or discharged the firearm be convicted. (People v. Garcia (2002) 28 Cal.4th 1166, 1176 [124 Cal.Rptr.2d 464, 52 P.3d 648].)
Defendant Need Not Know Principal Armed
For an enhancement charged under Penal Code section 12022.53(e) where the prosecution is pursuing vicarious liability, it is not necessary for the prosecution to prove that the defendant knew that the principal intended to use or discharge a firearm. (People v. Gonzales (2001) 87 Cal.App.4th 1, 14-15 [104 Cal.Rptr.2d 247].)
See the Related Issues sections of CALCRIM Nos. 3146-3149.
(New January 2006)