SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3130 Personally Armed With Deadly Weapon (PC 12022.3)
TABLE OF CONTENTS
F 3130.1 Titles And Identification Of Parties
F 3130.1 Inst 1 Personally Armed With Deadly Weapon—Title
F 3130.1 Inst 2 Identification Of Prosecution And Defendant
F 3130.2 Personally Armed With Deadly Weapon—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3130.3 Personally Armed With Deadly Weapon—Language That Is Argumentative, Confusing, Etc.
F 3130.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3130.4 Personally Armed With Deadly Weapon—Burden Of Proof Issues
F 3130.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3130.5 Personally Armed With Deadly Weapon—Elements And Definitions
F 3130.5 Inst 1 Multiple Enhancements For Single Weapon Use
F 3130.5 Inst 2 Armed With Firearm: Enumeration Of Elements
F 3130 Notes
F 3130 Note 1 Personally Armed With Deadly Weapon—CALCRIM Cross-References And Research Notes
F 3130 Note 2 Use Of Gun Or Weapon: No Multiple Enhancement When Succeeding Act Is Non-Sex Offense (PC 12022.3)
F 3130 Note 3 Carryover Of Use Enhancement When Defendant Absent Between Commission Of The Sex Offenses
F 3130 Note 4 Personal Use Of Firearm (PC 12022.3 and PC 12022.5): Arming As Lesser Charge (PC 12022 and PC 12022(a))
F 3130 Note 5 Personal Use As Prerequisite
F 3130 Note 6 Use Of Gun Or Weapon: Enhancement Attaches to Multiple Sex Offenses Against Single Victim (PC 12022.3)
F 3130 Note 7 Whether Heller Applies To Firearm Enhancement
Return to Series 3100 Table of Contents.
F 3130.1 Titles And Identification Of Parties
F 3130.1 Inst 1 Personally Armed With Deadly Weapon—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3130.1 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 3130.2 Personally Armed With Deadly Weapon—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3130.3 Personally Armed With Deadly Weapon—Language That Is Argumentative, Confusing, Etc.
F 3130.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
*Modify CC 3130, paragraph 1, sentence 1, as follows [added language is underlined; deleted language is stricken]:
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 try to decide, if you can, whether[, for each crime,] the People have prosecution has proved the additional allegation that the defendant was personally armed with a deadly weapon during the commission [or attempted commission] of that crime. [You must try to decide, if you can, whether the People have proved this allegation for each crime and return a separate finding for each crime.]
Points and Authorities
See FORECITE F 3100.3 Inst 1.
F 3130.4 Personally Armed With Deadly Weapon—Burden Of Proof Issues
F 3130.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 3100.4 Inst 1.
F 3130.5 Personally Armed With Deadly Weapon—Elements And Definitions
F 3130.5 Inst 1 Multiple Enhancements For Single Weapon Use
*Add to CC 3130 when appropriate:
To be subject to multiple enhancements for single weapon use, the defendant need not actually display or brandish the weapon or threaten its use before each successive offense.
However, before returning a separate use enhancement for a subsequent offense, the jury must find that the initial weapon use was utilized by the defendant as an aid in completing an essential element of the subsequent crime.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
To be subject to multiple enhancements, a defendant who uses a weapon while forcing a victim to submit to an initial sexual act does not need to actually display, brandish or threaten with it before each successive criminal sexual act committed immediately after and in the same site as the initial act. (People v. Blevins (1984) 158 CA3d 64, 67-71; see also People v. Turner (1983) 145 CA3d 658, 685.) However, there must be substantial evidence that the weapon was utilized “‘at least as an aid in completing an essential element of’ a subsequent crime [citation omitted].” (People v. Masbruch (1996) 13 C4th 1001, 1013.) To the extent that its holding was inconsistent with the above, People v. Funtanilla (1991) 1 CA4th 326, was disapproved. (Masbruch, n7 at 1013-14.)
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 17.19.1c.
F 3130.5 Inst 2 Armed With Firearm: Enumeration Of Elements
Adapt from FORECITE F 3115.5 Inst 1.
F 3130 Note 1 Personally Armed With Deadly Weapon—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3131 [Personally Armed With Firearm]
CALCRIM 3132 [Personally Armed With Firearm: Unlawfully Armed When Arrested]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3130 Note 2 Use Of Gun Or Weapon: No Multiple Enhancement When Succeeding Act Is Non-Sex Offense (PC 12022.3)
If a defendant uses a weapon in the commission of a non-sex offense which immediately succeeds a sex offense in which there has been no weapon use, multiple weapon enhancement is improper. (People v. Dobson (1988) 205 CA3d 496, 505; see also People v. Funtanilla (1991) 1 CA4th 326.)
However, in People v. Camacho (1993) 19 CA4th 1737, 1747, the court held that multiple weapon enhancements were properly imposed when the defendants initially used a weapon to kidnap the victim and subsequently committed a sexual assault while not specifically displaying the weapons.
CALJIC NOTE: See FORECITE F 17.19.1 n2.
F 3130 Note 3 Carryover Of Use Enhancement When Defendant Absent Between Commission Of The Sex Offenses
To be subject to multiple enhancements, a defendant who uses a weapon while forcing a victim to submit to an initial sexual act does not need to actually display, brandish or threaten with it before each successive criminal sexual act committed immediately after and in the same site as the initial act. (People v. Blevins (1984) 158 CA3d 64, 67-71; see also People v. Turner (1983) 145 CA3d 658, 685.) However, there must be substantial evidence that the gun was utilized “‘at least as an aid in completing an essential element of’ a subsequent crime [citation omitted]” (People v. Masbruch (1996) 13 C4th 1001, 1013.) To the extent that its holding was inconsistent with the above, People v. Funtanilla (1991) 1 CA4th 326, was disapproved. (Masbruch, n7 at 1013-14.)
[See FORECITE F 17.19.1c.]
CALJIC NOTE: See FORECITE F 17.19.1 n3.
F 3130 Note 4 Personal Use Of Firearm (PC 12022.3 and PC 12022.5): Arming As Lesser Charge (PC 12022 and PC 12022(a))
In some cases, the evidence may only weakly demonstrate “use” of a weapon. In such a case, the jury should be instructed on the lesser included enhancement of being armed with a weapon pursuant to PC 12022. (People v. Allen (1985) 165 CA3d 616, 627; PC 12022(a) is a lesser included of PC 12022.5; People v. Hayes (1983) 147 CA3d 534, 543-51; [same] People v. Turner (1983) 145 CA3d 658, 683-684 [PC 12022 is LIO of PC 12022.3].)
(See FORECITE LIO II(A)(4) [lesser enhancements must be requested].)
CALJIC NOTE: See FORECITE F 17.19.1 n4.
F 3130 Note 5 Personal Use As Prerequisite
Although CJ 17.19.1 requires the defendant’s personal use as a prerequisite to enhancement under PC 12022.3, that requirement was questioned in People v. Le (1984) 154 CA3d 1, 11-12, and People v. Scott DEPUBLISHED (1990) 221 CA3d 1243. However, the weight of authority favors the requirement of personal use. (See People v. Rener (1994) 24 CA4th 258, 267; see also, People v. Reed (1982) 135 CA3d 149, 151-53.)
Additionally, People v. Piper (1986) 42 C3d 471, 477, fn 5, has held that the comparable language of an analogous sentencing statute requires personal use. Also in Piper, the Supreme Court specifically took note of the Le case observing that its analysis was incomplete.
Further, the California Supreme Court denied review in Scott and ordered that opinion depublished. Although a denial of review is not an expression on the merits (see former Advisory Com. Comment, California Rules of Court, Rule 28) “it is not ‘without significance’ as to the Supreme Court’s views.” (People v. Dee (1990) 222 CA3d 760, 763-64.) And, even though an order of depublication “shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or any of the law set forth in the opinion” (Rule 8.1125(e) (formerly Rule 979(e)), in some cases “to insist that … depublication orders are without significance would be to perpetuate a myth.” (Dee, at 765.)
In sum, given the Supreme Court’s disapproval of People v. Le in Piper and its denial of review and depublication of People v. Scott, it is beyond reasonable dispute that PC 12022.3 requires personal use.
CALJIC NOTE: See FORECITE F 17.19.1 n5.
F 3130 Note 6 Use Of Gun Or Weapon: Enhancement Attaches to Multiple Sex Offenses Against Single Victim (PC 12022.3)
Neither the Culbreth rule prohibiting multiple use enhancements (In re Culbreth (1976) 17 C3d 330, 332-35) nor PC 654 prohibits the imposition of multiple weapons use in sex cases. (See People v. Ramirez (1987) 189 CA3d 603, 628-29; People v. Blevins (1984) 158 CA3d 64, 70-71.)
CALJIC NOTE: See FORECITE F 17.19.1 n1.
F 3130 Note 7 Whether Heller Applies To Firearm Enhancement
See FORECITE F 2303 Note 6.
