California Criminal Jury Instructions (CALCRIM) (2017)

3131. Personally Armed With Firearm

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3131.Personally Armed With Firearm (Pen. Code,
§§ 1203.06(b)(3), 12022(c), 12022.3(b))
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 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 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 person 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;
AND
2. Knows that he or she is carrying the firearm or has it available
for use.
<If there is an issue in the case over whether the defendant 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 June 2007, December 2008, February 2012
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].)
The court should give the bracketed definition of “firearm” unless the court has
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already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
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 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].)
If the defendant is charged with being ineligible for probation under Penal Code
section 1203.06 for being armed during the commission of the offense and having
been convicted of a specified prior crime, the court should also give CALCRIM
No. 3100, Prior Conviction: Nonbifurcated Trial, with this instruction unless the
defendant has stipulated to the prior conviction or the court has granted a
bifurcated trial.
AUTHORITY
• Enhancement. Pen. Code, §§ 1203.06(b)(3), 12022(c), 12022.3(b).
Firearm Defined. Pen. Code, § 16520.
• 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].
• Personally Armed. People v. Smith (1992) 9 Cal.App.4th 196, 203–208 [11
Cal.Rptr.2d 645].
• Must Be Personally Armed for Enhancement Under Penal Code Section
12022.3. 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].
• Defendant Not Present When Drugs and Weapon Found. People v. Bland
(1995) 10 Cal.4th 991, 995 [43 Cal.Rptr.2d 77, 898 P.2d 391].
• Facilitative Nexus. People v. Pitto (2008) 43 Cal.4th 228, 236–240 [74
Cal.Rptr.3d 590, 180 P.3d 338].
• Firearm Need Not Be Operable. People v. Nelums (1982) 31 Cal.3d 355, 360
[182 Cal.Rptr. 515, 644 P.2d 201].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3131
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• 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. 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].
Secondary Sources
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 311,
320, 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).
RELATED ISSUES
Defendant Not Present When Drugs and Weapon Found
In People v. Bland (1995) 10 Cal.4th 991, 995 [43 Cal.Rptr.2d 77, 898 P.2d 391],
the defendant was convicted of possession of a controlled substance and an
enhancement for being armed during that offense despite the fact that he was not
present when the police located the illegal drugs and firearm. The Court held that
there was sufficient evidence to support the arming enhancement, stating:
[W]hen the prosecution has proved a charge of felony drug possession, and the
evidence at trial shows that a firearm was found in close proximity to the
illegal drugs in a place frequented by the defendant, a jury may reasonably
infer: (1) that the defendant knew of the firearm’s presence; (2) that its
presence together with the drugs was not accidental or coincidental; and (3)
that, at some point during the period of illegal drug possession, the defendant
had the firearm close at hand and thus available for immediate use to aid in the
drug offense. These reasonable inferences, if not refuted by defense evidence,
are sufficient to warrant a determination that the defendant was “armed with a
firearm in the commission” of a felony within the meaning of section 12022.
(Ibid.)
The Bland case did not state that the jury should be specifically instructed in these
inferences, and it appears that no special instruction was given in Bland. If the
prosecution requests a special instruction on this issue, the court may consider
using the following language:
If the People have proved that a firearm was found close to the
<insert type of controlled substance allegedly possessed> in a place where the
defendant was frequently present, you may but are not required to conclude
that:
1. The defendant knew the firearm was present;
2. It was not accidental or coincidental that the firearm was present together
with the drugs;
CALCRIM No. 3131 ENHANCEMENTS AND SENTENCING FACTORS
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AND
3. During at least part of the time that the defendant allegedly possessed the
illegal drug, (he/she) had the firearm close at hand and available for
immediate use to aid in the drug offense.
If you find beyond a reasonable doubt that the evidence supports these
conclusions, you may but are not required to conclude that the defendant was
personally armed with a firearm in the commission [or attempted commission]
of the <insert name of alleged offense>] [or the lesser crime of
<insert name of alleged lesser offense>].
Multiple Defendants—Single Weapon
Two or more defendants may be personally armed with a single weapon at the
same time. (People v. Smith (1992) 9 Cal.App.4th 196, 205 [11 Cal.Rptr.2d 645].)
It is for the jury to decide if the firearm was readily available to both defendants
for use in offense or defense. (Ibid.)
For enhancements charged under Penal Code section 12022.3, see also the Related
Issues section of CALCRIM No. 3130, Personally Armed With Deadly Weapon.
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3131
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