3146. Personally Used Firearm
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 firearm 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.]
[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.]
Someone personally uses a firearm if he or she intentionally does any of the following:
1. Displays the firearm in a menacing manner;
2. Hits someone with the firearm;
3. Fires the firearm.
<If there is an issue in the case over whether the defendant used the firearm "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 that the allegation has not been proved.
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].)
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.
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, During 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].)
Enhancements. Pen. Code, §§ 667.5(c)(8), 667.61(e)(4), 1203.06, 1192.7(c)(8), 12022.3, 12022.5, 12022.53(b).
Firearm Defined. Pen. Code, § 12001(b).
Firearm Need Not Be Operable. People v. Nelums (1982) 31 Cal.3d 355, 360 [182 Cal.Rptr. 515, 644 P.2d 201]; see also Pen. Code, § 12022.53(b).
Firearm Need Not Be Loaded. See People v. Steele (1991) 235 Cal.App.3d 788, 791-795 [286 Cal.Rptr. 887]; see also Pen. Code, § 12022.53(b).
Personally Uses. People v. Marvin 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)(3).
"In Commission of" Felony. People v. Jones (2001) 25 Cal.4th 98, 109-110 [104 Cal.Rptr.2d 753, 18 P.3d 673]; 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].
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].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, §§ 321-332.
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[d] (Matthew Bender).
Assault With Firearm
An enhancement under Penal Code section 12022.5 may be applied to a conviction for assault with a firearm. (Pen. Code, § 12022.5(d).) The enhancements provided by Penal Code section 12022.53 may be applied to assault with a firearm on a peace officer, but to no other charge of assault. (Pen. Code, § 12022.53(a).)
Multiple Victims—Penal Code Section 12022.5
A defendant may receive multiple use enhancements under Penal Code section 12022.5 if convicted of multiple charges based on multiple victims even if the crimes occurred in a single "transaction" or "occurrence." (In re Tameka C. (2000) 22 Cal.4th 190, 195-198 [91 Cal.Rptr.2d 730, 990 P.2d 603].) Thus, where the defendant was convicted of two counts of assault based on firing a single shot at one person, injuring a second, unintended victim, the defendant properly received two use enhancements. (Id. at p. 200.)
See the Related Issues section of CALCRIM No. 3145, Personally Used Deadly Weapon.
(New January 2006)