Return to CALJIC Part 9-12 – Contents
F 9.02.1 n1 Assault With Assault Weapons: Applies To Firearms Not Just Rifles (PC 245(a)(3) & PC 245(b)).
Effective 1/1/94, the term “semi-automatic rifle” in PC 245(a)(3) and PC 245(b) was changed to “semi-automatic firearm.” CJ 9.02.1 should be modified to change the word “rifle” to “firearm.”
Definition Of “Assault Weapon”
*CJ 9.02.1 (1990 New) should be modified as follows:
Delete ¶ 4 which purports to generally define an “assault weapon.”
Points and Authorities
PC 245(a)(3), as amended effective January 1, 1990, provides that an assault committed with “an assault weapon, as defined in PC 12276, shall be punished by imprisonment in the state prison for 4, 8 or 12 years.” PC 12276 provides as follows: “As used in this chapter, ‘assault weapon’ shall mean the following firearms known by trade names: [specification of various manufacturers and models].”
Hence, in order to be liable for the increased punishment provided by PC 245(a)(3), the defendant must commit the assault with one of the weapons specified in PC 12276. (Upon the fulfillment of specific statutory requirements, a weapon may be added to the listing under PC 12276 pursuant to PC 12276.5(f). However, until the weapon has been added to the PC 12276 list, it is not an assault weapon for purposes of PC 245(a)(3). (See Harrott v. County of Kings (2001) 25 C4th 1138, 1143-44 [108 CR2d 445] [statutory ban on assault weapons applies only to weapons on either statutory list or list promulgated by attorney general, not to weapons that are ‘functionally’ equivalent to listed weapons].)
Despite the specific statutory designation of what constitutes an assault weapon, CJ 9.02.1 (1990 version) includes the following definition:
“An assault weapon is a firearm of such a nature and with such a high rate of fire and capacity for fire power that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.”
This language, which is taken from the legislative findings and declarations in PC 12275.5 has no place in an instruction to the jury. PC 12275.5 does not define “assault weapon” as suggested by the CALJIC comment. PC 12275.5 simply expresses the legislative findings and does not provide a definition to be used by the jury in applying the statute. An evaluation of whether the weapon is a legitimate sports or recreational firearm and the balancing of this function against the danger that it poses to human beings is manifestly a function of the legislature.
In sum, it is clear that the statutory scheme is intended to limit the definition of an assault weapon to those specific weapons identified in PC 12276 and the definition of assault included in CJ 9.02.1 should be deleted.
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.]