F 17.16.1

F 17.16.1 n1 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 17.16.1a

Arming During Drug Offense (PC 12022(c)):

Arming Must Occur During “Critical and Integral” Part of the Drug Transaction

*Add to CJ 17.16.1 when appropriate:

The defendant must be armed during an essential [critical] and integral part of the drug transactions.

Points and Authorities

In People v. Amador REV GTD/DISD/DEPUB (2/22/94, S037089) 20 CA4th 426, 429 [24 CR2d 542] reprinted at 35 CA4th 322, a PC 12022(c) arming enhancement was upheld where the defendant carried the gun on his person to the drug transaction and had possession of the gun when inspecting the “buy money.” The fact that the defendant was not armed when the transaction was consummated by delivery of the cocaine was of no consequence because the defendant was armed during “an essential and integral part of the drug transaction.” (Note that the court also used the phrase “critical and integral part of the drug transaction.” (Amador 20 CA4th at 430.))

Hence, when appropriate, the jury should determine whether the defendant was armed during an essential (or critical) and integral part of the transaction.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]