California Criminal Jury Instructions (CALCRIM) (2017)
3147. Personally Used Firearm: Assault Weapon, Machine Gun, or .50 BMG RifleDownload PDF
3147.Personally Used Firearm: Assault Weapon, Machine Gun,
or .50 BMG Riﬂe (Pen. Code, § 12022.5(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 personally used
(an assault weapon/a machine gun/a .50 BMG riﬂe) 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/An) <insert type of weapon from Pen. Code, § 30510 or
description from § 30515> is an assault weapon.]
[A machine gun is any weapon that (shoots[,]/ [or] is designed to
shoot[,]/ [or] can readily be restored to shoot) automatically more than
one shot by a single function of the trigger and without manual
reloading.] [(A/An) <insert name of weapon deemed by the
federal Bureau of Alcohol, Tobacco, and Firearms as readily convertible to
a machine gun> is [also] a machine gun.]
[A .50 BMG riﬂe is a center ﬁre riﬂe that can ﬁre a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be ﬁred from a
center ﬁre riﬂe and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base to the tip of the
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
3. The case base diameter for the cartridge is from .800 inch to,
and including, .804 inch.]
[The term (assault weapon/machine gun/.50 BMG riﬂe) is deﬁned in
[(An assault weapon/A machine gun/A .50 BMG riﬂe) does not need to
be in working order if it was designed to shoot and appears capable of
shooting.] [(An assault weapon/A machine gun/A .50 BMG riﬂe) does
not need to be loaded.]
Someone personally uses (an assault weapon/a machine gun/a .50 BMG
riﬂe) if he or she [knows or reasonably should know that the weapon
has characteristics that make it (an assault weapon/a machine gun/a .50
BMG riﬂe) and] intentionally does any of the following:
1. Displays the (assault weapon/machine gun/.50 BMG riﬂe) in a
2. Hits someone with the (assault weapon/machine gun/.50 BMG
3. Fires the (assault weapon/machine gun/.50 BMG riﬂe).
<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
that the allegation has not been proved.
New January 2006; Revised February 2012
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 Supreme Court has held that for the crime of possession of an assault weapon,
the prosecution must prove that the defendant knew or reasonably should have
known that the weapon possessed the characteristics of an assault weapon. (In re
Jorge M. (2000) 23 Cal.4th 866, 887 [98 Cal.Rptr.2d 466, 4 P.3d 297].) It is
unclear if this holding applies to an enhancement for using an assault weapon. In
the deﬁnition of “personally uses,” the court may give the bracketed phrase that
begins “knows or reasonably should know” at its discretion.
The court should give the bracketed deﬁnition of “assault weapon” or “machine
gun” 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
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].)
• Enhancement. Pen. Code, § 12022.5(b).
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3147
• Assault Weapon Deﬁned. Pen. Code, §§ 30510, 30515.
• Machine Gun Deﬁned. Pen. Code, § 16880.
• .50 BMG Riﬂe Deﬁned. Pen. Code, § 30530.
• Knowledge Required for Assault Weapon Possession. In re Jorge M. (2000)
23 Cal.4th 866, 887 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• 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. 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].
• 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
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment,
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 (Matthew Bender).
See the Related Issues sections of CALCRIM No. 3145, Personally Used Deadly
Weapon, and CALCRIM No. 3146, Personally Used Firearm.
CALCRIM No. 3147 ENHANCEMENTS AND SENTENCING FACTORS