Return to CALJIC Part 14-17 – Contents
F 17.19.1 n1 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 (76) 17 C3d 330, 332-35 [130 CR 719]) nor PC 654 prohibits the imposition of multiple weapons use in sex cases. (See People v. Ramirez (87) 189 CA3d 603, 628-29 [233 CR 645]; People v. Blevins (84) 158 CA3d 64, 70-71 [204 CR 124].)
F 17.19.1 n2 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 (88) 205 CA3d 496, 505 [252 CR 423]; see also People v. Funtanilla (91) 1 CA4th 326 [1 CR2d 875].)
However, in People v. Camacho (93) 19 CA4th 1737, 1747 [24 CR2d 286], 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.
F 17.19.1 n3 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 (84) 158 CA3d 64, 67-71 [204 CR 124]; see also People v. Turner (83) 145 CA3d 658, 685 [193 CR 614].) 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 (96) 13 C4th 1001, 1013 [55 CR2d 760].) To the extent that its holding was inconsistent with the above, People v. Funtanilla (91) 1 CA4th 326 [1 CR2d 875], was disapproved. (Masbruch, n7 at 1013-14.)
[See FORECITE F 17.19.1c.]
F 17.19.1 n4 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 (85) 165 CA3d 616, 627 [211 CR 837]; PC 12022(a) is a lesser included of PC 12022.5; People v. Hayes (83) 147 CA3d 534, 543-51 [195 CR 252]; [same] People v. Turner (83) 145 CA3d 658, 683-684 [193 CR 614] [PC 12022 is LIO of PC 12022.3].)
(See LIO II(A)(4) [lesser enhancements must be requested].)
F 17.19.1 n5 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 (84) 154 CA3d 1, 11-12 [200 CR 839], and People v. Scott DEPUBLISHED (90) 221 CA3d 1243 [271 CR 257]. However, the weight of authority favors the requirement of personal use. (See People v. Rener (94) 24 CA4th 258, 267 [29 CR2d 392]; see also, People v. Reed (82) 135 CA3d 149, 151-53 [185 CR 169].)
Additionally, People v. Piper (86) 42 C3d 471, 477, fn 5 [229 CR 125], 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 Advisory Com. Comment, California Rules of Court, Rule 28) “it is not ‘without significance’ as to the Supreme Court’s views.” (People v. Dee (90) 222 CA3d 760, 763-64 [272 CR 208].) 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 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.
F 17.19.1 n6 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 17.19.1a
Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
*Add to CJ 17.19.1:
[See FORECITE F 9.02a.]
F 17.19.1b
Weapon Use: Nexus Requirement
*Add to CJ 17.19.1:
[See FORECITE F 17.16b.]
F 17.19.1c
Multiple Enhancements For Single Weapon Use
*Add to CJ 17.19.1 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
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 (84) 158 CA3d 64, 67-71 [204 CR 124]; see also People v. Turner (83) 145 CA3d 658, 685 [193 CR 614].) 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 (96) 13 C4th 1001, 1013 [55 CR2d 760].) To the extent that its holding was inconsistent with the above, People v. Funtanilla (91) 1 CA4th 326 [1 CR2d 875], was disapproved. (Masbruch, n7 at 1013-14.)
F 17.19.1d
Modification When Crime Involves Fetal Victim
*Modify CJ 17.19.1 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
