Return to CALJIC Part 14-17 – Contents
F 17.19 n1 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 (72) 7 C3d 666, 674 [102 CR 776].) 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 (52) 39 C2d 578, 591; People v. Alotis (64) 60 C2d 698, 707 [36 CR 443].
F 17.19 n2 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 (85) 165 CA3d 616, 627 [211 CR 837]; PC 12022 is a lesser included of PC 12022.5.) [See also, FORECITE EA IV(B).]
In People v. Schaefer (93) 18 CA4th 950, 951 [22 CR2d 536], the court held that the defendant’s admission of a use allegation (PC 12022.5) necessarily included an arming enhancement (PC 12022(b).)
F 17.19 n3 No Sentencing Enhancement For Great Bodily Injury Where The Offense Includes Great Bodily Injury As An Element (PC 12022.7).
When the substantive offense includes an element of serious bodily injury or great bodily injury (e.g., PC 243(d)), a great bodily injury enhancement per PC 12022.7 may not properly be charged or imposed. (People v. Hawkins (93) 15 CA4th 1373, 1375-76 [19 CR2d 434]; see also People v. Valencia (2000) 82 CA4th 139 [98 CR2d 37] [PC 12022.7(f) expressly precludes the imposition of a great bodily injury enhancement to the sentence of a murder conviction]; but see People v. Chaffer (2003) 111 CA4th 1037, 1044 [because serious injury is not an essential component of the definition of the crime serious bodily injury is not a necessary element of PC 273.5 and the PC 12022.7 GBI enhancement applies].)
NOTE: The terms “serious bodily injury” and “great bodily injury” have substantially the same meaning. (Hawkins 15 CA4th at 1375; People v. Kent (79) 96 CA3d 130, 136 [158 CR 35].)
F 17.19 n4 Firearm Use: Culbreth Overruled (PC 12022.5).
In People v. King (93) 5 C4th 59, 75-78 [19 CR2d 233], the Supreme Court overruled In re Culbreth (76) 17 C3d 330, 332-35 [130 CR 719]) 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.)
F 17.19 n5 Use Enhancement May Not Be Applied To Conviction For Possession Of The Weapon (PC 12022.5).
In In re Pritchett (94) 26 CA4th 1754, 1757 [33 CR2d 296], 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.
F 17.19 n6 Firearm Use: “Traditional” Firearm Need Not Be Defined.
CJ 17.19 provides alternative means by which to define the term “firearm.” People v. Runnion (94) 30 CA4th 852, 858 [36 CR2d 203] 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.”
F 17.19 n7 Application Of “Temporary Safety” Rule To Enhancements.
See FORECITE F 8.21.1 n4.
F 17.19 n8 Use Enhancement Applies To Assault With Semiautomatic Firearm (PC 245(b)).
People v. Joachim (95) 38 CA4th 1526 [45 CR2d 630] held that the personal firearm use enhancement (PC 12022.5) applies to conviction of assault with a semiautomatic firearm per PC 245(b).
F 17.19 n9 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 (96) 50 CA4th 1562, 1574 [58 CR2d 545].)
F 17.19 n9.1 BB Gun Is Dangerous Weapon.
See In re Bartholomew D. (2005) 131 CA4th 317 [BB gun is a dangerous weapon under PC 12022(b), because it’s dangerous to others in the ordinary use for which it was designed, which is to expel a metal projectile at a target].
F 17.19 n10 Firearm Use: Multiple Enhancements For Single Act.
In People v. King (93) 5 C4th 59, 79 [19 CR2d 233] 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 [91 CR2d 730] 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 (60) 55 C2d 11, 20 [9 CR 607]).
F 17.19 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 17.19 n12 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 [115 CR2d 359].)
F 17.19 n13 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].)
F 17.19a
Personal Use of Firearm: Requirement of Threat to Use Firearm
(PC 12022.5)
Substitute as 4th paragraph of CJ 17.19 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
In CJ 17.19, the term “used a firearm” is alternatively defined as meaning “to display a 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 (87) 193 CA3d 375, 381 [238 CR 278].) Thus, as Jacobs makes clear, 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 (96) 49 CA4th 317, 325 [56 CR2d 636] [jury may find “facilitative use” from intentional display or exposure of firearm]), it will generally take the form of “words.” (Jacobs, at 381.)
A sentencing enhancement which increases the range of punishment to which the defendant is exposed is subject to the due process (5th and 14th Amendments) and fair trial by jury (6th and 14th Amendments) provisions of the federal constitution. (See Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215]; see also FORECITE PG VII(C)(32).)
NOTE
“Display” does not connote that complaining witness must see the firearm. (People v. Granado (96) 49 CA4th 317, 326-29 [56 CR2d 636].)
F 17.19b
Personal Use Of Firearm: Requires Personal Use
*Add to CJ 17.19:
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
A firearm enhancement under PC 12022.5 requires that the defendant personally uses the firearm. (People v. Walker (76) 18 C3d 232, 240-43 [133 CR 520].) CJ 17.19 uses the phrase “personal use” but does not define that phrase. Hence, in cases where the court has also instructed the jury on aiding and abetting, CJ 17.19 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 abetter. Without such clarification, rational jurors, under the aiding and abetting instructions, will hear that since an aider and abetter 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 [108 CR2d 137] [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 [108 CR2d 76] [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].)
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-599.]
F 17.19c
Use Enhancement: Menacing Display Must Be Intentional
*Modify ¶ 4 of CJ 17.19 defining “used a firearm” to provide as follows [added language is capitalized]:
The term “used a firearm,” as used in this instruction, means to INTENTIONALLY display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it.
[See FORECITE F 17.19a regarding requirement of threat to use the firearm.]
Points and Authorities
(People v. Johnson (95) 38 CA4th 1315 [45 CR2d 602].)
NOTES
Johnson held that the failure to instruct on the necessary intent was state rather than federal constitutional error. (See People v. Wims (95) 10 C4th 293, 304-09 [41 CR2d 241].) 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.
F 17.19d
Discharge Of Firearm At Occupied Vehicle Causing Great Bodily Injury
(PC 12022.5(b)(1))
*Modify CJ 17.19 when enhancement is charged under PC 12022.5(b)(1)as follows:
It is alleged in count __________ that defendant __________ discharged a firearm at an occupied motor vehicle which caused great bodily injury or death to another person. To return a verdict of “true” as to this enhancement, you must find each of the following elements:
1. The defendant personally discharged a firearm at an occupied motor vehicle; and
2. Said act caused great bodily injury or death to another person.
The word “firearm” includes any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion. A motor vehicle is a vehicle which is self-propelled.
The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
You will include a special finding on that question in your verdict, using the form that will be supplied for that purpose.
[Add appropriate causation instructions. (See CJ 3.40 and CJ 3.41; see also FORECITE F 3.40 et seq. and FORECITE F 3.41 et seq.)]
Points and Authorities
PC 12022.5(b)(1) does not apply merely because “a firearm has been discharged” or “a person has suffered great bodily injury or death.” Instead, the language focuses on the causation of the injury by the culpable defendant. (People v. Gutierrez (96) 46 CA4th 804, 811-12 [54 CR2d 149].) Accordingly, this enhancement applies only to a defendant who personally discharges a firearm at an occupied motor vehicle, and whose firearm discharge causes great bodily injury or death. (Id. at 814-15.) Gutierrez held that instruction in the language of CJ 17.19 without adapting that instruction to the elements of PC 12022.5(b)(1) was error. (Ibid.)
Motor vehicle is defined in VC 415. The trailer portion of a tractor-trailer rig has been defined as a motor vehicle within the meaning of VC 415. (See FORECITE F 9.03 n2.)
The final three paragraphs of the above instruction are taken from CJ 17.19.
F 17.19e
Modification When Crime Involves Fetal Victim
*Modify CJ 17.19 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
