SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3115 Armed With Firearm (PC 12022(a)(1))
TABLE OF CONTENTS
F 3115.1 Titles And Identification Of Parties
F 3115.1 Inst 1 Armed With Firearm—Title
F 3115.1 Inst 2 Identification Of Prosecution And Defendant
F 3115.2 Armed With Firearm—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3115.3 Armed With Firearm—Language That Is Argumentative, Confusing, Etc.
F 3115.3 Inst 1 Arming: Elements Of “Facilitative Nexus”
F 3115.4 Armed With Firearm—Burden Of Proof Issues
F 3115.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3115.5 Armed With Firearm—Elements And Definitions
F 3115.5 Inst 1 Armed With Firearm: Enumeration Of Elements
F 3115.5 Inst 2 Arming: Knowledge Requirement When Liability Is Premised On An Accomplice Theory (PC 12022(a))
F 3115.5 Inst 3 Arming: Firearm Must Be Available For Use
F 3115 Notes
F 3115 Note 1 Armed With Firearm—CALCRIM Cross-References And Research Notes
F 3115 Note 2 Two People Can Be Personally Armed With One Firearm
F 3115 Note 3 Having Firearm Within Reach Does Not Conclusively Establish Arming
F 3115 Note 4 Limitation On Arming Enhancement When Defendant Is Convicted Of Assault With A Deadly Weapon
F 3115 Note 5 Vicarious Arming Liability For Assault Weapon Or Machine Gun (PC 12022(a)(2))
F 3115 Note 6 Untrue Finding On Personal Use Of Firearm As Bar To Retrial Of Murder Charge
F 3115 Note 7 Arming Enhancements: Double Jeopardy/Collateral Estoppel
F 3115 Note 8 Application Of “Temporary Safety” Rule To Enhancements
F 3115 Note 9 Arming: Whether Verdict Applies To Both Defendants Even Though Verdict Only Mentions One Defendant By Name
F 3115 Note 10 Firearms Sentencing: 10 / 20 / Life (PC 12022.53)
F 3115 Note 11 Improper To Refer To The Prosecution As “The People”
F 3115 Note 12 Sentencing Enhancement For Carrying Firearm: Inapplicable When Firearm Was “Loot” Obtained In Robbery
F 3115 Note 13 Arming: Firearm Must Be Knowingly Available For Use
F 3115 Note 14 Arming: Nexus Requirement
F 3115 Note 15 Whether Heller Applies To Firearm Enhancement
F 3115 Note 16 Gang Enhancement And Use Of Firearm
Return to Series 3100 Table of Contents.
F 3115.1 Titles And Identification Of Parties
F 3115.1 Inst 1 Armed With Firearm—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3115.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3115.2 Armed With Firearm—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3115.3 Armed With Firearm—Language That Is Argumentative, Confusing, Etc.
F 3115.3 Inst 1 Arming: Elements Of “Facilitative Nexus”
*Add to CC 3115:
If the defendant did not actually carry the firearm you may not find that [he] [she] was armed with the firearm unless the prosecution has proved the following beyond a reasonable doubt:
1) the defendant, while committing the offense of _______________ <insert drug offense>, knew of the presence and location of a firearm near the drugs; AND
2) The proximity of the firearm to the drugs was not the result of mere accident or happenstance; AND
3) The defendant was in a position to use the firearm offensively or defensively to aid in the commission of the offense.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Propriety Of The Instruction – In People v. Pitto (2008) 43 C4th 228, 239-40 the California Supreme Court acknowledged that an arming allegation under PC 12022 requires proof of a “facilitative nexus” between the firearm and the drug possession which requires the firearm to have a “purpose or effect” with respect to the commission of the charged offense. Thus, the evidence must establish that “(1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense. . . .” (Id. at 240; see also Levenson & Ricciardulli, California Criminal Jury Instruction Handbook (West 2012-2013), § 11:3, Authors’ Notes, pp. 597-98.)
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE 4.1 [Right To Instruct The Jurors On Defense Theories ]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3115.4 Armed With Firearm—Burden Of Proof Issues
F 3115.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 3115.5 Armed With Firearm—Elements And Definitions
F 3115.5 Inst 1 Armed With Firearm: Enumeration Of Elements
*Replace CC 3115, paragraph 2-6 with the following [CC 3361 adaption]:
To prove this allegation the prosecution must prove that:
1. _______________ <name of alleged armed principal> (directly committed [or attempted to commit] the crime, aided and abetted _______________ <name of perpetrator> in committing the crime.
2. _______________ <name of alleged armed principal> carried a _______________ <describe firearm or use definition from paragraph 3>;
AND
3. _______________ <name of alleged armed principal> carried the ________ <describe firearm or use definition from paragraph 3> during the commission [or attempted commission] of the crime referenced in paragraph 1 above;
4. _______________ <name of alleged armed principal> carried the ________ <describe firearm or use definition from paragraph 3> for use in either offense defense;
AND
5. _______________ <name of alleged armed principal> knew that (he/she) was carrying the firearm [or had access to it].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The elements of an enhancement should be specifically and separately enumerated so the instruction clearly conveys what elements the prosecution must prove. (See e.g., CC 3117, CC 3132, CC 3148; CC 3160, CC 3161.)
[See also FORECITE F 3500.2 Inst 1.]
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3115.5 Inst 2 Arming: Knowledge Requirement When Liability Is Premised On An Accomplice Theory (PC 12022(a))
*Add to CC 3115 after definition of “armed”:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—In People v. McGreen (1980) 107 CA3d 504, 523-25, 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 (1994) 28 CA4th 1497, 1501-02.)
However, in Staples v. U.S. (1994) 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 (1984) 35 C3d 547, 556-60.) 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 (1983) 147 CA3d 534, 545 [“‘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.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 17.15b.
F 3115.5 Inst 3 Arming: Firearm Must Be Available For Use
*Replace Elements in CC 3115 with the following [CC 3250 and 3251 adaption]:
To prove this allegation the prosecution must prove that:
1. _______________ <name of alleged armed principal> (directly committed [or attempted to commit] the crime, aided and abetted _______________ <name of perpetrator> in committing the crime;
AND
2. _______________ <name of alleged armed principal> [carried a _______________ <describe firearm>] [had a _______________ <describe firearm>] available for use offensively or defensively to aid in the commission of the offense;
AND
3. _______________ <name of alleged armed principal> [carried the ________ <describe firearm>] [had the firearm available for use offensively or defensively to aid in the commission of the offense] during the commission [or attempted commission] of the crime referenced in paragraph 1 above;
AND
4. _______________ <name of alleged armed principal> carried the ________ <describe firearm or use definition from paragraph 3> for use in either offense defense;
AND
5. _______________ <name of alleged armed principal> knew that (he/she) was carrying the firearm [or had access to it].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The elements of an enhancement should be specifically and separately enumerated so the instruction clearly conveys what elements the prosecution must prove. (See e.g., CC 3117, CC 3132, CC 3148; CC 3160, CC 3161.) The firearm must be “available for use offensively or defensively to aid in the commission of the offense. . . .” (People v. Pitto (2008) 43 C4th 228, 240.)
[See also FORECITE F 3500.2 Inst 1.]
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.11 [Applicability Of Federal Constitutional Rights To Sentencing Decisions]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 3115 NOTES
F 3115 Note 1 Armed With Firearm—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3116 [Armed With Firearm: Assault Weapon, Machine Gun, Or .50 BMG Rifle (PC 12022(a)(2))]
CALCRIM 3117 [Armed With Firearm: Knowledge That Coparticipant Armed (PC 12022(d))]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3115 Note 2 Two People Can Be Personally Armed With One Firearm
In People v. Mendival (1992) 2 CA4th 562, 574-575, 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.
CALJIC NOTE: See FORECITE F 17.15 n2.
F 3115 Note 3Having 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.)
CALJIC NOTE: See FORECITE F 17.15 n3.
F 3115 Note 4Limitation 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 (1993) 15 CA4th 107, 115, 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.)
CALJIC NOTE: See FORECITE F 17.15 n4.
F 3115 Note 5 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) (1991) 235 CA3d 1464, 1471; 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 (1982) 31 C3d 568, 576.)
CALJIC NOTE: See FORECITE F 17.15 n5.
F 3115 Note 6 Untrue Finding On Personal Use Of Firearm As Bar To Retrial Of Murder Charge
[See FORECITE EA II(C).]
F 3115 Note 7 Arming Enhancements: Double Jeopardy/Collateral Estoppel
See FORECITE EA II(C).
F 3115 Note 8Application Of “Temporary Safety” Rule To Enhancements
[See FORECITE F 8.21.1 n4.]
F 3115 Note 9 Arming: Whether Verdict Applies To Both Defendants Even Though Verdict Only Mentions One Defendant By Name
In People v. Paul (1998) 18 C4th 698, the Supreme Court held in which 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.
CALJIC NOTE: See FORECITE F 17.15 n9.
F 3115 Note 10 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 (1992) 2 C4th 271, 313 [Supreme Court suggested that former CJ 3.40 – which defined proximate cause—may be subject to challenge under Mitchell v. Gonzales (1991) 54 C3d 1041, 1048-54].)
B. Ex Post Facto Challenge. [See Brief Bank # B-851 for briefing challenging application of the 1999 version of PC 12022.53.]
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, 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.)
F. PC 12022.53: 10-20-Life For Use Of Firearm With GBI Is Constitutional. (People v. Perez (2001) 86 CA4th 675, 680-82.)
G. Whether Actual Shooter Must Be Convicted Of Underlying Felony. (See People v. Garcia (2002) 28 C4th 1166 [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.)
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].)
CALJIC NOTE: See FORECITE F 17.15 n10.
F 3115 Note 11Improper 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.”
CALJIC NOTE: See FORECITE F 17.15 n11.
F 3115 Note 12 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.)
CALJIC NOTE: See FORECITE F 17.15 n12.
F 3115 Note 13Arming: Firearm Must Be Knowingly Available For Use
In People v. Mendival (1992) 2 CA4th 562, 575, 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 (1995) 10 C4th 991, 1002-03.) 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.
CALJIC NOTE: See FORECITE F 17.15 n1.
F 3115 Note 14 Arming: Nexus Requirement
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 3115 Note 15 Whether Heller Applies To Firearm Enhancement
See FORECITE F 2303 Note 6.
F 3115 Note 16 Gang Enhancement And Use Of Firearm
People v. Valenzuela (10/12/2011, B226848) 199 CA4th 1214: The gang enhancement was erroneously imposed in addition to the PC 12022.5 enhancement. The trial court erred in imposing a 15-year minimum parole eligibility period under PC 186.22(b)(5) for several attempted murder counts. The jury found only that a principal personally used a firearm in the commission of these counts. Therefore, appellant was not subject to an enhancement for participation in a criminal street gang in addition to the gun use enhancement.