California Criminal Jury Instructions (CALCRIM) (2017)

3116. Armed With Firearm: Assault Weapon, Machine Gun, or .50 BMG Rifle, Pen. Code, § 12022(a)(2)

Download PDF
3116.Armed With Firearm: Assault Weapon, Machine Gun, or .50
BMG Rifle (Pen. Code, § 12022(a)(2))
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 (an assault weapon/a machine gun/a .50 BMG rifle) 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/An) <insert type of weapon from Pen. Code, § 30510 or
description from § 30515> is an assault weapon.]
[A machine gun is any weapon that (shoots[,]/ [or] is designed to
shoot[,]/ [or] can readily be restored to shoot) automatically more than
one shot by a single function of the trigger and without manual
reloading.] [(A/An) <insert name of weapon deemed by the
federal Bureau of Alcohol, Tobacco, and Firearms as readily convertible to
a machine gun> is [also] a machine gun.]
[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be fired from a
center fire rifle and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base to the tip of the
bullet;
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
AND
3. The case base diameter for the cartridge is from .800 inch to,
and including, .804 inch.]
[The term (assault weapon/machine gun/.50 BMG rifle) is defined in
another instruction.]
[(An assault weapon/A machine gun/A .50 BMG rifle) does not need to
be in working order if it was designed to shoot and appears capable of
shooting.] [(An assault weapon/A machine gun/A .50 BMG rifle) does
not need to be loaded.]
804
0022
A principal is armed with (an assault weapon/a machine gun/a .50 BMG
rifle)when that person:
1. Carries (an assault weapon/a machine gun/a .50 BMG rifle) [or
has (an assault weapon/a machine gun/a .50 BMG rifle)
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 weapon [or has it
available](./;)
<See Bench Notes regarding element 3.>
[AND
3. Knows or reasonably should know that the weapon has
characteristics that make it (an assault weapon/a machine gun/a
.50 BMG rifle).]
<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
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 Supreme Court has held that for the crime of possession of an assault weapon,
the prosecution must prove that the defendant knew or reasonably should have
known that the weapon possessed the characteristics of an assault weapon. (In re
Jorge M. (2000) 23 Cal.4th 866, 887 [98 Cal.Rptr.2d 466, 4 P.3d 297].) It is
unclear if this holding applies to an enhancement for being armed with an assault
weapon. Element 3 is provided for the court to use at its discretion.
The court should give the bracketed definition of “assault weapon,” “machine gun,”
or “.50 BMG rifle” 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
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3116
805
0023
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 (an
assault weapon/a machine gun) 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. 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, 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)(2).
Principal Defined. Pen. Code, § 31.
• Assault Weapon Defined. Pen. Code, §§ 30510, 30515.
• Machine Gun Defined. Pen. Code, § 16880.
• .50 BMG Rifle Defined. Pen. Code, § 30530.
• Knowledge Required for Possession of Assault Weapon. In re Jorge M. (2000)
23 Cal.4th 866, 887 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• 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].
• 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
CALCRIM No. 3116 ENHANCEMENTS AND SENTENCING FACTORS
806
0024
Cal.4th 98, 109–110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch
(1996) 13 Cal.4th 1001, 1011–1013 [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
See the Related Issues section of CALCRIM No. 3115, Armed With Firearm.
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3116
807
0025