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

Judicial Council of California Criminal Jury Instructions (2023 edition)

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3225.Aggravating Factor: Armed or Used Weapon
<Introductory paragraph for nonbifurcated trial>
[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 crimes[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] .]
<Introductory paragraph for bifurcated trial>
[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
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. (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
state law requirement that an aggravating factor may not be found to be true unless
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the defendant’s conduct was distinctively worse than an ordinary commission of the
underlying crime.
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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