Return to CALJIC Part 14-17 – Contents
F 17.15 n1 Arming: Firearm Must Be Knowingly Available For Use.
In People v. Mendival (92) 2 CA4th 562, 575 [3 CR2d 566], the court concluded that a PC 12022(c) arming enhancement may be imposed when the defendant has the firearm “available for use in either offense or defense.” However, in so holding, the court made it clear that the defendant must knowingly have the firearm available. (Mendival 2 CA4th at 575; see also, People v. Bland (95) 10 C4th 991, 1002-03 [43 CR2d 77].) Hence, unawareness of the weapon (see CJ 1.24) or intoxication, etc. (see FORECITE F 4.21 n4) may be a defense to the knowledge element of the enhancement.
F 17.15 n2 Two People Can Be Personally Armed With One Firearm.
In People v. Mendival (92) 2 CA4th 562, 574-575 [3 CR2d 566], the court held that two people may be subjected to enhancement liability under PC 12022(c) for possession of a single firearm if both individuals have the firearm available for their use.
F 17.15 n3 Having Firearm Within Reach Does Not Conclusively Establish Arming.
In the federal system “carrying” a firearm within the meaning of 18 USC 924(c) is established by proof that the weapon was available. (U.S. v. Torres-Medina (9th Cir. 1991) 935 F2d 1047, 1049.) However, it is error to instruct the jury that arming is shown conclusively when the firearm is in reach. (U.S. v. Perez (9th Cir. 1993) 989 F2d 1111, 1115.)
F 17.15 n4 Limitation on Arming Enhancement When Defendant Is Convicted of Assault With a Deadly Weapon.
A deadly weapon use enhancement under PC 12022(b) cannot be imposed when use of a deadly weapon is an element of the offense of which the accused is convicted. (PC 12022(b).) In People v. McGee (93) 15 CA4th 107, 115 [19 CR2d 12], the court considered whether use of a deadly weapon is an element of PC 245(a)(1). That section requires that the defendant assault the victim “with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury ….” Hence, the statute speaks in the alternative specifying two forms of prohibited conduct which, when considered in the abstract, may or may not include use of a deadly weapon as an element. However, in McGee, the court concluded that in determining whether use of a deadly weapon other than a firearm is an element of PC 245(a)(1), the question is not simply whether, in the abstract, the section can be violated without using such a weapon. Rather, the conduct of the accused, i.e., the means by which he or she violated the statute, must be considered. (McGee 15 CA4th at 115.) Hence, if the defendant assaulted the victim by use of the same weapon upon which the enhancement is predicated, then the exception to the imposition of a weapon use enhancement set forth in PC 12022(b) applies. Moreover, this rule applies even if the pleadings only charge the defendant with assault by means of force likely to produce great bodily injury and the jury is so instructed. (McGee 15 CA4th at 115.)
F 17.15 n5 Vicarious Arming Liability For Assault Weapon Or Machine Gun (PC 12022(a)(2)).
PC 12022(a)(2), which provides a 3-year enhancement where a principal is armed with an “assault weapon” or machine gun, like PC 12022(a)(1), applies to both personal and vicarious arming. (See People v. Superior Court (Pomilia) (91) 235 CA3d 1464, 1471 [1 CR2d 386]; see also, People v. Bland (95) 10 C4th 991, 998 [43 CR2d 77].) In contrast, enhancement provisions that specify the defendant be “personally armed” (e.g. PC 12022(c)) limit liability for increased punishment to “those who themselves commit the prohibited conduct.” (See People v. Cole (82) 31 C3d 568, 576 [183 CR 350].)
F 17.15 n6 Untrue Finding On Personal Use Of Firearm As Bar To Retrial Of Murder Charge.
[See FORECITE EA II(C).]
F 17.15 n7 Arming: Enhancements: Double Jeopardy/Collateral Estoppel.
See FORECITE EA II(C).
F 17.15 n8 Application Of “Temporary Safety” Rule To Enhancements.
[See FORECITE F 8.21.1 n4.]
F 17.15 n9 Arming: Whether Verdict Applies To Both Defendants Even Though Verdict Only Mentions One Defendant By Name.
In People v. Paul (98) 18 C4th 698 [76 CR2d 660] the Supreme Court held that a finding that a principal was armed in the commission of the charged substantive offense adequately established that another person who was jointly charged and who was also found to have been a principal in that offense is subject to the armed-principal enhancement specified under PC 12022(a)(1) and that such finding meets the requirements of PC 1158a.
F 17.15 n10 Firearms Sentencing: 10 / 20 / Life (PC 12022.53).
Effective January 1, 1998, PC 12022.53 was amended to provide a consecutive term of 25 to life if GBI was “proximately caused” by discharge of a firearm.
A. Challenge To Use Of The Term “Proximate Cause.” However, PC 12022.53 may be subject to challenge since the term “proximate cause” has been held to be unduly “confusing” to lay jurors. (People v. Roberts (92) 2 C4th 271, 313 [6 CR2d 276] [Supreme Court suggested that former CJ 3.40 – which defined proximate cause – may be subject to challenge under Mitchell v. Gonzales (91) 54 C3d 1041, 1048-54 [1 CR2d 913]].)
B. Ex Post Facto Challenge. [See Brief Bank # B-851 for briefing challenging application of the 1999 version of PC 12022.53 is available to FORECITE subscribers.]
C. PC 12022.53 Includes Murder. PC 12022.53 adds a 25 years to life sentence for defendants who discharge firearms causing great bodily injury (GBI) as defined in PC 12022.7. In People v. Valencia (2000) 82 CA4th 139 [98 CR2d 37] the defense argued that since PC 12022.7 expressly exempts murder, PC 12022.53 must also exempt murder. The Valencia court held that the legislative intent of the statute was to use the PC 12022.7 definition of GBI, but not all of its specific provisions. Hence, the PC 12022.53 GBI enhancement was permissible in a murder prosecution. (See also People v. Sanders (2003) 111 CA4th 1371, 1376 [neither the merger doctrine, nor PC 654, precludes imposition of the firearm enhancement under PC 12022.53(d)] for murder].)
D. PC 12022.53 Is Not Intended To Apply Where There’s Been A Finding Of Complete Or Imperfect Self-Defense. [See Brief Bank # B-873 for briefing on this issue.]
E. PC 12022.53(e): 10-20-Life For Unarmed Aider And Abettor With Gang Allegation Is Constitutional. (People v. Gonzales (2001) 87 CA4th 1, 17 [104 CR2d 247].)
F. PC 12022.53: 10-20-Life For Use Of Firearm With GBI Is Constitutional. (People v. Perez (2001) 86 CA4th 675, 680-82 [103 CR2d 533].)
G. Whether Actual Shooter Must Be Convicted Of Underlying Felony. (See People v. Garcia (2002) 28 C4th 1166 [124 CR2d 464] [although aider and abettor must first be convicted of underlying offense before enhancement may apply, prosecution need not plead and prove conviction of offense by principal who intentionally and personally discharged firearm].)
H. PC 12022.53 Enhancement Requires Personal Use Or Discharge Of The Gun. (See People v. Tillett DEPUBLISHED (2001) 89 CA4th 1139, 1162-64 [108 CR2d 76].)
I. Necessity Of Defining “Proximate Cause.” (See FORECITE F 3.40 n2.)
J. Multiple Victims – Enhancement Permitted For Each Separate Offense. (See People v. Oates (2004) 32 C4th 1048 [defendant who fires 2 shots at 5 people, hitting one, may have his sentence enhanced under PC 12002.53 (the 10-20-life law) 5 times, one for each person in the group under subdivision (d), which provides for 25-life enhancement].)
F 17.15 n11 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 17.15 n12 Sentencing Enhancement For Carrying Firearm: Inapplicable When Firearm Was “Loot” Obtained In Robbery.
When the “loot” obtained from a robbery includes firearms, it is improper to charge, as a separate allegation, that the firearms were carried during and in relation to a crime of violence. (See U.S. v. Shuler (10th Cir. 1999) 181 F3d 1188, 1189-90.)
F 17.15a Arming: Weapon Must Be Close At Hand And Readily Accessible (PC 12022).
There is no sua sponte duty to instruct, beyond the provisions of CJ17.15, that there must be a facilitative nexus between the possession of illegal drugs and a firearm, or that, if defendant’s testimony was credited, the proximity of the gun to the drugs was accidental and coincidental and had no purpose or effect as to the drug offenses. (People v. Pitto (2008) 43 C4th 228, 240.)
F 17.15b
Arming: Knowledge Requirement When
Liability Is Premised On An Accomplice Theory
(PC 12022(a))
Add the following to the end of ¶ 5 of CJ 17.15:
However, a principal in the crime is deemed to be armed with a firearm only when [he] [she] had knowledge that another principal planned to use a firearm in the commission of the crime.
Points and Authorities
In People v. McGreen (80) 107 CA3d 504, 523-25 [166 CR 360], the court held that the legislative intent underlying PC 12022(a) was not “to impose a scienter burden upon the prosecution to prove that a principal knew or should have known that his confederate in the commission of a felony was carrying a firearm.” (McGreen 107 CA3d at 524-25; accord, People v. Overten (94) 28 CA4th 1497, 1501-02 [34 CR2d 232].)
However, in Staples v. U.S. (94) 511 US 600 [128 LEd2d 608, 616; 114 SCt 1793], the court recognized that “the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” [Internal citations and quotation marks omitted.] Hence, silence of a statute concerning the mens rea required for violation does not necessarily suggest an intent to dispense with the conventional mens rea elements such as knowledge.
Moreover, allowing vicarious liability without knowledge would violate the fundamental principle that vicarious criminal liability requires the defendant to act with knowledge of the perpetrator’s criminal purpose. (People v. Beeman (84) 35 C3d 547, 556-60 [199 CR 60].) At the very least, PC 12022(a) requires a showing that the defendant knew his accomplice was in possession of a firearm. (People v. Hays (83) 147 CA3d 534, 545 [195 CR 252] [“‘armed’ means possession with the intent to use the weapon as a means of offense or defense”].) To allow additional vicarious criminal liability in the form of an enhancement without requiring the necessary knowledge would implicate the defendant’s rights to trial by jury and due process. (U.S. Const. 6th and 14th Amendments; Calif. Const., Art I, § 15 and § 16.)
People v. Wims (95) 10 C4th 293 [41 CR2d 241], held that the failure to instruct upon an element of an enhancement does not violate the federal constitution. [A copy of the briefing in Wims is available to FORECITE subscribers. Ask for Brief Bank # B-611 a & b.] However, Wims has been effectively invalidated by Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348] and Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] which held that federal constitutional rights to trial by jury and due process (6th and 14th Amendments) apply to any sentencing enhancement which increases the defendant’s sentencing exposure. (See also FORECITE PG VII(C)(32) and EA V(L).) Hence, the federal constitutional standard of prejudice should be applied.
