California Criminal Jury Instructions (CALCRIM) (2017)

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

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B. ARMED WITH FIREARM
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 in 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 in connection with the crime[s] charged in
Count[s] [or the lesser crime[s] of <insert
name[s] of alleged lesser offense[s]>,];
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 “in 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.
New January 2006; Revised August 2006, February 2012
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0019
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. 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 “in the
commission of” the offense, the court may give CALCRIM No. 3261, In
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, § 16520.
• Armed. People v. 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].
• Firearm Need Not Be Operable. People v. Nelums (1982) 31 Cal.3d 355, 360
[182 Cal.Rptr. 515, 644 P.2d 201].
CALCRIM No. 3115 ENHANCEMENTS AND SENTENCING FACTORS
802
0020
• 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/Facilitative Nexus. People v. Bland (1995) 10
Cal.4th 991, 1002 [43 Cal.Rptr.2d 77, 898 P.2d 391]; 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].
• Presence of Gun Cannot Be Accident or Coincidence. Smith v. United States
(1993) 508 U.S. 223, 238 [113 S.Ct. 2050, 124 L.Ed.2d 138].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 320,
329.
5Witkin & 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].)
Facilitative Nexus/Connection
Even though the Supreme Court is currently reviewing the Court of Appeal’s
decision in People v. Pitto, the committee has revised the language of this
instruction to more clearly express the facilitative nexus required in People v.
Bland (1995) 10 Cal.4th 991, 1002 [43 Cal.Rptr.2d 77, 898 P.2d 391]
[contemporaneous possession of illegal drugs and firearm not sufficient without
evidence of facilitative nexus between the two, comparing to federal law
requirement of carrying a firearm ‘during and in relation to’ drug trafficking].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3115
803
0021