3132. Personally Armed With Firearm: Unlawfully Armed When Arrested
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;
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;
2. Knows that he or she is carrying the firearm [or has it available].
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.
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 12021, 12025, or 12031. 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. Marvin 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.
Enhancement. Pen. Code, § 1203.06(a)(2).
Firearm Defined. Pen. Code, § 12001(b).
Armed. People v. Marvin 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].
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).
(New January 2006)