CALCRIM No. 3225. Aggravating Factor: Armed or Used Weapon

Judicial Council of California Criminal Jury Instructions (2025 edition)

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3225.Aggravating Factor: Armed or Used Weapon

[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 lesser offense[s]>], you must then decide

whether[, for each crime,] the People have proved the additional

allegation[s] that the defendant was armed with or used a weapon, to

wit: <insert description of weapon>, during commission of

the crime[s] in Count[s] .]

[The People have alleged that the defendant was armed with or used a

weapon, to wit: <insert description of weapon>, during

commission of the crime[s][ in Count[s] ].]

To prove this allegation, the People must prove that the defendant, while

committing the crime[s][ in Count[s] ], (knowingly carried a

weapon[,]/ [or ]knowingly had a weapon available for use[,]/ [or

]intentionally displayed a weapon in a menacing manner[,]/ [or

]intentionally (fired/ [or ]attempted to fire) a weapon[,]/ [or ]intentionally

(struck[,]/ [or ]stabbed[,]/ [or ]slashed[,]/ [or ]hit][,]/ [or ]attempted to

(strike[,]/ [or ]stab[,]/ [or ]slash[,]/ [or ]hit) another person with a

weapon).

[A device, instrument, or object that is capable of being used to inflict

injury or death may be a weapon. In determining whether

<insert description> was a weapon, you may consider the totality of

circumstances, including the manner in which it was used or possessed.]

You may not find the allegation true unless all of you agree that the

People have proved that the defendant was either armed or used a

weapon. However, all of you do not need to agree on which act[s] or

conduct constitutes the arming or use of a weapon.

You may not find the allegation true unless all of you agree that the

People have proved that the defendant’s conduct was distinctively worse

than an ordinary commission of the underlying crime.

[You must decide whether the People have proved this allegation for

each crime and return a separate finding for each crime.]

The People have the burden of proving this allegation beyond a

reasonable doubt. If the People have not met this burden, you must find

that the allegation has not been proved.

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New March 2023; Revised March 2024,* February 2025*

* Denotes changes only to bench notes and other commentaries.

BENCH NOTES

Instructional Duty

This instruction is provided for the court to use for an aggravating factor as stated

in California Rules of Court, rule 4.421. (See Pen. Code, §§ 1170, 1170.1; see also

Cunningham v. California (2007) 549 U.S.270 [127 S.Ct. 856, 166 L.Ed.2d 856].)

Do not give an aggravating factor that is an element of the convicted offense. (Pen.

Code, § 1170(b)(5).)

The court must bifurcate the jury’s determination of the aggravating factors on the

defendant’s request “[e]xcept where evidence supporting an aggravating

circumstance is admissible to prove or defend against the charged offense or

enhancement at trial, or it is otherwise authorized by law.” (Pen. Code,

§ 1170(b)(2).) For a bifurcated trial, the court must also give CALCRIM No. 221,

Reasonable Doubt: Bifurcated Trial.

The court should specify which crimes the aggravating factor pertains to if it applies

to one or more specific counts.

Give the bracketed portion that defines weapon if the object is not a weapon as a

matter of law and is capable of innocent uses.

AUTHORITY

• Aggravating Factor. California Rules of Court, rule 4.421(a)(2).

• “Aggravating Fact” Defined. People v. Black (2007) 41 Cal.4th 799, 817 [62

Cal.Rptr.3d 569, 161 P.3d 1130]; People v. Hicks (2017) 17 Cal.App.5th 496,

512 [225 Cal.Rptr.3d 682]; People v. Zamarron (1994) 30 Cal.App.4th 865, 872

[36 Cal.Rptr.2d 17]; People v. Moreno (1982) 128 Cal.App.3d 103, 110 [179

Cal.Rptr. 879] [“The essence of ‘aggravation’ relates to the effect of a particular

fact in making the offense distinctively worse than the ordinary”].

• Unanimity Not Required Regarding Facts Underlying the Aggravating Factor.

People v. McDaniel (2021) 12 Cal.5th 97, 142-148 [283 Cal.Rptr.3d 32, 493

P.3d 815].

• Arming Includes Available for Use. People v. Garcia (1986) 183 Cal.App.3d

335, 350 [228 Cal.Rptr. 87].

COMMENTARY

Distinctively Worse Than the Ordinary

The committee is aware of Johnson v. United States (2015) 576 U.S. 591, 597-598

[135 S.Ct. 2551, 192 L.Ed.2d 569], in which the United States Supreme Court held

that determining what constitutes an “ordinary” violation of a criminal statute may

create a constitutional vagueness problem. Nevertheless, in light of California case

law that has never been disapproved (see, e.g., People v. Moreno, supra, 128

Cal.App.3d at p. 110), the committee has elected to include in the instruction the

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state law requirement that an aggravating factor may not be found to be true unless

the defendant’s conduct was distinctively worse than an ordinary commission of the

underlying crime.

One court has held that the aggravating factor scheme under California Rules of

Court, rule 4.421 does not present the same problem as Johnson because comparing

the defendant’s conduct with other ways in which the same offense has been or may

be committed “does not require the decisionmaker to define a single, imaginary fact

pattern as the ‘ordinary’ way of committing the offense” and thus does not raise a

constitutional concern. (See Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th

65, 88-90 [315 Cal.Rptr.3d 202].)

Penal Code section 12022

Consistent with the language of rule 4.421(a)(2), the instruction has been drafted

with the assumption that the defendant is personally armed. The armed enhancement

contained in Penal Code section 12022(a)(1) provides: “This additional term shall

apply to a person who is a principal in the commission of a felony or attempted

felony if one or more of the principals is armed with a firearm, whether or not the

person is personally armed with a firearm.” Whether there is a relationship between

the rule of court and Penal Code section 12022(a)(1) has not been addressed by case

law.

RELATED ISSUES

Prohibition Against Dual Use of Facts at Sentencing

The jury may find true multiple aggravating factors based on the same underlying

fact. However, at sentencing, a single underlying fact may not support more than

one aggravating factor. (People v. Fernandez (1990) 226 Cal.App.3d 669, 680 [276

Cal.Rptr. 631].)

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Page last reviewed April 2025