California Criminal Jury Instructions (CALCRIM) (2017)

3145. Personally Used Deadly Weapon

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D. PERSONALLY USED DEADLY WEAPON OR
FIREARM
3145.Personally Used Deadly Weapon (Pen. Code,
§§ 667.61(e)(3), 1192.7(c)(23), 12022(b)(1) & (2), 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 personally used
a deadly [or dangerous] weapon during 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 [or dangerous] weapon is any object, instrument, or weapon
that is inherently deadly [or dangerous] or one that is used in such a
way that it is capable of causing and likely to cause death or great
bodily injury.
[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.
Someone personally uses a deadly [or dangerous] weapon if he or she
intentionally does any of the following:
[1.] Displays the weapon in a menacing manner(./;)
[OR]
[2. Hits someone with the weapon(./;)]
[OR
(3/2). Fires the weapon.]
<If there is an issue in the case over whether the defendant used the
weapon “during 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
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that the allegation has not been proved.
New January 2006; Revised June 2007, February 2013
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].)
Give all of the bracketed “or dangerous” phrases if the enhancement charged uses
both the words “deadly” and “dangerous” to describe the weapon. (Pen. Code,
§§ 667.61, 1192.7(c)(23), 12022(b).) Do not give these bracketed phrases if the
enhancement uses only the word “deadly.” (Pen. Code, § 12022.3.)
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].)
In the definition of “personally uses,” the court may give the bracketed item 3 if
the case involves an object that may be “fired.”
If the case involves an issue of whether the defendant used the weapon “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].)
AUTHORITY
• Enhancements. Pen. Code, §§ 667.61(e)(3), 1192.7(c)(23), 12022(b)(1) & (2),
12022.3.
Deadly Weapon Defined. 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].
• 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].
• Personally Uses. People v. Bland (1995) 10 Cal.4th 991, 997 [43 Cal.Rptr.2d
77, 898 P.2d 391]; People v. Johnson (1995) 38 Cal.App.4th 1315, 1319–1320
[45 Cal.Rptr.2d 602]; see also Pen. Code, § 1203.06(b)(2).
• “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].
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• May Not Receive Enhancement for Both Using and Being Armed With One
Weapon. People v. Wischemann (1979) 94 Cal.App.3d 162, 175–176 [156
Cal.Rptr. 386].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 40.
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 320,
324–332.
5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, §§ 91.30, 91.81[1][d] (Matthew Bender).
RELATED ISSUES
No Duty to Instruct on “Lesser Included Enhancements”
“[A] trial court’s sua sponte obligation to instruct on lesser included offenses does
not encompass an obligation to instruct on ‘lesser included enhancements.’ ”
(People v. Majors (1998) 18 Cal.4th 385, 411 [75 Cal.Rptr.2d 684, 956 P.2d 1137].)
Thus, if the defendant is charged with an enhancement for use of a weapon, the
court does not need to instruct on an enhancement for being armed.
Weapon Displayed Before Felony Committed
Where a weapon is displayed initially and the underlying crime is committed some
time after the initial display, the jury may conclude that the defendant used the
weapon in the commission of the offense if the display of the weapon was “at least
. . . an aid in completing an essential element of the subsequent crimes . . . .”
(People v. Masbruch (1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d
705].)
Weapon Used Did Not Cause Death
In People v. Lerma (1996) 42 Cal.App.4th 1221, 1224 [50 Cal.Rptr.2d 580], the
defendant stabbed the victim and then kicked him. The coroner testified that the
victim died as a result of blunt trauma to the head and that the knife wounds were
not life threatening. (Ibid.) The court upheld the finding that the defendant had used
a knife during the murder even though the weapon was not the cause of death. (Id.
at p. 1226.) The court held that in order for a weapon to be used in the commission
of the crime, there must be “a nexus between the offense and the item at issue,
[such] that the item was an instrumentality of the crime.” (Ibid.) [ellipsis and
brackets omitted] Here, the court found that “[t]he knife was instrumental to the
consummation of the murder and was used to advantage.” (Ibid.)
“One Strike” Law and Use Enhancement
Where the defendant’s use of a weapon has been used as a basis for applying the
“one strike” law for sex offenses, the defendant may not also receive a separate
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enhancement for use of a weapon in commission of the same offense. (People v.
Mancebo (2002) 27 Cal.4th 735, 754 [117 Cal.Rptr.2d 550, 41 P.3d 556].)
Assault and Use of Deadly Weapon Enhancement
“A conviction [for assault with a deadly weapon or by means of force likely to
cause great bodily injury] under [Penal Code] section 245, subdivision (a)(1)
cannot be enhanced pursuant to section 12022, subdivision (b).” (People v.
Summersville (1995) 34 Cal.App.4th 1062, 1070 [40 Cal.Rptr.2d 683].)
Robbery and Use of Deadly Weapon Enhancement
A defendant may be convicted and sentenced for both robbery and an enhancement
for use of a deadly weapon during the robbery. (In re Michael L. (1985) 39 Cal.3d
81, 88 [216 Cal.Rptr. 140, 702 P.2d 222].)
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