SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3146 Personally Used Firearm (PC 667.5(c)(8), 667.61(e)(4), 1203.06, 1192.7(c)(8), 12022.3, 12022.5, 12022.53(b))
TABLE OF CONTENTS
F 3146.1 Titles And Identification Of Parties
F 3146.1 Inst 1 Personally Used Firearm—Title
F 3146.1 Inst 2 Identification Of Prosecution And Defendant
F 3146.2 Personally Used Firearm—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3146.3 Personally Used Firearm—Language That Is Argumentative, Confusing, Etc.
F 3146.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3146.4 Personally Used Firearm—Burden Of Proof Issues
F 3146.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3146.5 Personally Used Firearm—Elements And Definitions
F 3146.5 Inst 1 Armed With Firearm: Enumeration Of Elements
F 3146.5 Inst 2 Personal Use of Firearm: Requirement Of Threat To Use Firearm (PC 12022.5)
F 3146.5 Inst 3 Personal Use Of Firearm: Requires Personal Use
f 3146 notes
F 3146 Note 1 Personally Used Firearm—CALCRIM Cross-References And Research Notes
F 3146 Note 2 Personal Use Of Firearm: Arming As Lesser Charge (PC 12022.5)
F 3146 Note 3 Firearm Use: Culbreth Overruled (PC 12022.5)
F 3146 Note 4 Use Enhancement May Not Be Applied To Conviction For Possession Of The Weapon (PC 12022.5)
F 3146 Note 5 Firearm Use: “Traditional” Firearm Need Not Be Defined
F 3146 Note 6 Application Of “Temporary Safety” Rule To Enhancements
F 3146 Note 7 Use Enhancement Applies To Assault With Semiautomatic Firearm (PC 245(b))
F 3146 Note 8 Use Of Deadly Or Dangerous Weapon: Starter Pistol Does Not Qualify
F 3146 Note 9 Firearm Use: Multiple Enhancements For Single Act
F 3146 Note 10 25-To-Life Enhancement (PC 12022.5(d))
F 3146 Note 11 Personal Use of Firearm Causing Great Bodily Injury: Requirement of Personal Use
F 3146 Note 12 Firearm Use: Inapplicable To Negligent Or Involuntary Act (PC 12022.5)
F 3146 Note 13 Gun Use Only Requires General Intent
F 3146 Note 14 Definition Of “Displays A Firearm In A Menacing Manner
F 3146 Note 15 Instructions Should Assure That Jurors Understand Which Counts Require Defendant To Personally Use A Firearm
Return to Series 3100 Table of Contents.
F 3146.1 Titles And Identification Of Parties
F 3146.1 Inst 1 Personally Used Firearm—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3146.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3146.2 Personally Used Firearm—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3146.3 Personally Used Firearm—Language That Is Argumentative, Confusing, Etc.
F 3146.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
*Modify CC 3146, paragraph 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 personally used a firearm 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 3146.4 Personally Used Firearm—Burden Of Proof Issues
F 3146.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 3146.5 Personally Used Firearm—Elements And Definitions
F 3146.5 Inst 1 Armed With Firearm: Enumeration Of Elements
Adapt from FORECITE F 3115.5 Inst 1.
F 3146.5 Inst 2 Personal Use of Firearm: Requirement Of Threat To Use Firearm (PC 12022.5)
*Replace paragraph 5 of CC 3146 the following:
The term “used a firearm,” as used in this instruction, means to intentionally fire a firearm, to intentionally strike or hit a human being with a firearm, or to display a firearm in conjunction with an express or implied threat that it will be used.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—In CC 221, the term “personally uses a firearm” is alternatively defined as meaning “displays the firearm in a menacing manner.” Importantly, the quoted definition is not complete. As is well settled, when a gun is not aimed at the victim, PC 12022.5 requires “some type of display of the weapon, coupled with a threat to use it …” (People v. Jacobs (1987) 193 CA3d 375, 381). “. . .[A] gun is “used” when there is evidence of gun-related conduct coupled with the intent the gun-related action facilitate the crime: in Johnson [People v. Johnson (1995) 38 CA4th 1315] active display with threats to effect the false imprisonment, in Jacobs [People v. Jacobs (1987) 193 CA3d 375] a threat and audibly cocking the gun as if in preparation to shoot to complete the robbery, in Colligan [People v. Colligan (1979) 91 CA3d 846] active display with threats to further the robbery.” [emphasis added] (Alvarado v. Superior Court (2007) 146 CA4th 993, 1006 [“. . .no evidence of any action taken with the gun, or of any gun-related conduct. . .”].) Thus, as a mere “menacing” display of a weapon is not sufficient to constitute a violation of PC 12022.5. Rather, the display must be coupled with a threat. While the threat may be implied from conduct (see People v. Granado (1996) 49 CA4th 317, 325 [jury may find “facilitative use” from intentional display or exposure of firearm]), it will generally take the form of “words.” (Jacobs, at 381.)
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.
NOTES
“Display” does not connote that complaining witness must see the firearm. (People v. Granado (1996) 49 CA4th 317, 326-29.)
CALJIC NOTE: See FORECITE F 17.19a.
F 3146.5 Inst 3 Personal Use Of Firearm: Requires Personal Use
*Add to CC 3146:
You may only find personal use based upon use of the weapon by defendant __________ <insert name of defendant against whom use allegation is charged>. Use by another participant in the offense may not be imputed to defendant __________ for the purposes of this enhancement allegation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Personal Use Required—A firearm enhancement under PC 12022.5 requires that the defendant personally uses the firearm. (People v. Walker (1976) 18 C3d 232, 240-43.) CC 221 uses the phrase “personally used” but does not define that phrase. Hence, in cases where the court has also instructed the jury on aiding and abetting, CC 221 should be clarified to assure that the jury does not use the “equally guilty” language of the aiding and abetting instruction to impute the perpetrator’s gun used to the aider and abettor. Without such clarification, rational jurors, under the aiding and abetting instructions, will hear that since an aider and abettor is guilty as a principal, they may consider themselves able to impose a “personal use” enhancement on one who aids and abets a “personal user” in the underlying substantive crime. Hence, without the above clarification, there is a danger that the defendant’s constitutional right to a jury resolution of all necessary elements of the charge will be implicated. (See People v. Salas (2001) 89 CA4th 1275, 1281 [personal use of firearm sentence enhancement cannot be applied unless defendant actually used firearm in commission of offense]; see also People v. Tillett DEPUBLISHED (2001) 89 CA4th 1139, 1162-64 [jury instruction defining personal use of firearm during robbery PC 12022.53(b) and (c) was error, and personal discharge of gun enhancement must be stricken].)
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.
NOTES
[See Brief Bank # B-599 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 17.19b.
F 3146 NOTES
F 3146 Note 1Personally Used Firearm—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3145 [Personally Used Deadly Weapon]
CALCRIM 3147 [Personally Used Firearm: Assault Weapon, Machine Gun, Or .50 BMG Rifle]
CALCRIM 3148 [Personally Used Firearm: Intentional Discharge]
CALCRIM 3149 [Personally Used Firearm: Intentional Discharge Causing Injury Or Death]
CALCRIM 3150 [Personally Used Firearm: Intentional Discharge And Discharge Causing Injury Or Death Both Charged]
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors —Series 3100.
F 3146 Note 2 Personal Use Of Firearm: Arming As Lesser Charge (PC 12022.5)
In some cases, the evidence may only weakly demonstrate “use” of a weapon within the meaning of PC 12022.5. 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 is a lesser included of PC 12022.5.) [See also, FORECITE EA IV(B).]
In People v. Schaefer (1993) 18 CA4th 950, 951, the court held that the defendant’s admission of a use allegation (PC 12022.5) necessarily included an arming enhancement (PC 12022(b).)
CALJIC NOTE: See FORECITE F 17.19 n2.
F 3146 Note 3 Firearm Use: Culbreth Overruled (PC 12022.5)
In People v. King (1993) 5 C4th 59, 75-78, the Supreme Court overruled In re Culbreth (1976) 17 C3d 330, 332-35) subject to PC 654 and PC 1170.1 and any other applicable limitations. Hence, a firearm-use enhancement under PC 12022.5 may be imposed for each separate offense for which the enhancement is found true.
NOTE: The King court did not decide the propriety of multiple enhancements when the same act results in multiple victims, such as when 1 bullet hits 2 or more persons. (King, 5 C4th at 79.)
CALJIC NOTE: See FORECITE F 17.19 n4.
F 3146 Note 4 Use Enhancement May Not Be Applied To Conviction For Possession Of The Weapon (PC 12022.5)
In In re Pritchett (1994) 26 CA4th 1754, 1757, the court held that a defendant who is convicted for possession of a weapon under PC 12020 may not receive a use enhancement pursuant to PC 12022.5(a). This is so because the defendant’s possession of the weapon was complete without use of it and any subsequent use during the possession did not constitute use “in the commission” of the crime of possession which was already complete.
CALJIC NOTE: See FORECITE F 17.19 n5.
F 3146 Note 5 Firearm Use: “Traditional” Firearm Need Not Be Defined
CJ 17.19 provides alternative means by which to define the term “firearm.” People v. Runnion (1994) 30 CA4th 852, 858, held that in a case involving a “traditional” firearm, such as a handgun, it is not error to simply instruct the jury according to the first CJ alternative that firearm “includes a handgun.”
CALJIC NOTE: See FORECITE F 17.19 n6.
F 3146 Note 6 Application Of “Temporary Safety” Rule To Enhancements
See FORECITE F 8.21.1 n4.
F 3146 Note 7 Use Enhancement Applies To Assault With Semiautomatic Firearm (PC 245(b))
People v. Joachim (1995) 38 CA4th 1526, held that the personal firearm use enhancement (PC 12022.5) applies to conviction of assault with a semiautomatic firearm per PC 245(b).
CALJIC NOTE: See FORECITE F 17.19 n8.
F 3146 Note 8 Use Of Deadly Or Dangerous Weapon: Starter Pistol Does Not Qualify
A starter pistol, for purposes of PC 12022(b), is not an inherently dangerous or deadly weapon and, therefore, cannot support a use enhancement per PC 12022(b) unless there is evidence that it was going to be used as a bludgeon. (People v. Godwin (1996) 50 CA4th 1562, 1574.)
CALJIC NOTE: See FORECITE F 17.19 n9.
F 3146 Note 9 Firearm Use: Multiple Enhancements For Single Act
In People v. King (1993) 5 C4th 59, 79, the Supreme Court did not decide the propriety of multiple enhancements when the same act has resulted in multiple victims of assault. In re Tameka C. (2000) 22 C4th 190, held that multiple firearm enhancements are permissible where there is either an intent to harm more than one person or the defendant employs means likely to cause harm to several persons. (See e.g. Neal v. State (1960) 55 C2d 11, 20.)
CALJIC NOTE: See FORECITE F 17.19 n10.
F 3146 Note 10 25-To-Life Enhancement (PC 12022.5(d))
The 25-to-life firearm enhancement contained in PC 12022.5(d) may be imposed on the robbery and attempted robbery of each of a group of victims, even though only one was shot and killed. The statute uses the words “any person” instead of “that person,” and the legislature intended to punish persons who use firearms and injure victims more harshly. The use of the firearm and the shooting of one victim increased the fear of the other robbery victims. (People v. Mason (2002) 95 CA4th 221.)
CALJIC NOTE: See FORECITE F 17.19 n12.
F 3146 Note 11 Personal Use of Firearm Causing Great Bodily Injury: Requirement of Personal Use
(See People v. Cobb (2004) 124 CA4th 1051 [no “group shooting” exception to ban on imposition of PC 12022.53(d) and PC 12022.53(e)(1) [personal use and vicarious use when there was only one victim]; cf., People v. Oates (2004) 32 C4th 1048, 1066 [multiple victims].)
CALJIC NOTE: See FORECITE F 17.19 n13.
F 3146 Note 12 Firearm Use: Inapplicable To Negligent Or Involuntary Act (PC 12022.5)
The meaning of the word “use,” as employed in PC 12022.5, is the same as that given to the word in PC 1203 regarding probation. (People v. Chambers (1972) 7 C3d 666, 674.) Negligent or involuntary discharge of a firearm not otherwise being used on a human being does not constitute a “use” within the meaning of PC 1203. (People v. Southack (1952) 39 C2d 578, 591; People v. Alotis (1964) 60 C2d 698, 707.)
CALJIC NOTE: See FORECITE F 17.19 n1.
F 3146 Note 13 Gun Use Only Requires General Intent
See People v. Wardell (2008) 162 CA4th 1484, 1494-95 [PC 12022.5(a) does not require specific intent].
F 3146 Note 14 Definition Of “Displays A Firearm In A Menacing Manner
See People v. Wardell (2008) 162 CA4th 1484, 1495 [no duty under PC 12022.5 to define “displays a firearm in a menacing manner” to include an “intent to facilitate the commission of the underlying offense].
F 3146 Note 15 Instructions Should Assure That Jurors Understand Which Counts Require Defendant To Personally Use A Firearm
See FORECITE F 1402 Note 4.