CALCRIM No. 3130. Personally Armed With Deadly Weapon (Pen. Code, § 12022.3)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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C. PERSONALLY ARMED WITH DEADLY WEAPON OR
FIREARM
3130.Personally Armed With Deadly Weapon (Pen. Code,
§ 12022.3)
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 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.]
Adeadly weapon is any object, instrument, or weapon [that is inherently
deadly or one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[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 in connection with the crime[s]
charged;
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 “in the commission of” the offense, see Bench Notes.>
The People have the burden of proving each allegation beyond a
827
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised December 2008, February 2013, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an 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 phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In 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].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
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. 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 “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].)
AUTHORITY
• Enhancement. Pen. Code, § 12022.3.
• Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6-8 [147
Cal.Rptr.3d 848]; 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].
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• 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. Pitto (2008) 43 Cal.4th 228, 236-240 [74 Cal.Rptr.3d 590,
180 P.3d 338]; 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].
• 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 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].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
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.
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SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 349,
364, 388.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
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).
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