California Criminal Jury Instructions (CALCRIM) (2017)

3132. Personally Armed With Firearm: Unlawfully Armed When Arrested

Download PDF
3132.Personally Armed With Firearm: Unlawfully Armed When
Arrested (Pen. Code, § 1203.06(a)(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 unlawfully
armed with a firearm when (he/she) was arrested for that crime. [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. The defendant was personally armed with a firearm when (he/
she) was arrested for the crime;
AND
2. The defendant possessed the firearm unlawfully.
[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;
AND
2. Knows that he or she is carrying the firearm or has it available
for use.
Other instructions explain what is necessary for the People to prove that
the defendant possessed the firearm unlawfully. You must apply those
instructions when you decide whether the People have proved this
additional allegation.
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.
818
0036
New January 2006; Revised June 2007, 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 must also give the appropriate instruction on unlawful possession of a
firearm under Penal Code section 29800, 25400, or 25850. See CALCRIM Nos.
2500 et seq., on weapons.
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.
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 defendant is charged with being ineligible for probation under Penal Code
section 1203.06 for being armed when arrested 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(a)(3).
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].
• Personally Armed. People v. Smith (1992) 9 Cal.App.4th 196, 203–208 [11
Cal.Rptr.2d 645].
• Firearm Need Not Be Operable. See 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].
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3132
819
0037
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).
3133–3144. Reserved for Future Use
CALCRIM No. 3132 ENHANCEMENTS AND SENTENCING FACTORS
820
0038