Firearm Near Drugs: “Facilitative Nexus” Not Required
July 10th, 2014


People v. Pitto (2008) 43 Cal. 4th 228, rejected the “facilitative nexus” set forth by the Court of Appeal which had been adopted by both CC and CJ. Under People v. Pitto, “[w]hen (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission.” (Id. at 240.)


Under People v. Pitto, “[i]t doesn’t matter whether, at the particular moment he knowingly placed the gun where it was available for such criminal use, he did so for reasons unrelated to drug possession or trafficking. Regardless of his original motive, the opportunity and incentive to later resort to using the gun in perpetrating the crime is the same. And his deliberate placement of the gun and drugs in juxtaposition to each other negates any claim of accident or coincidence.” (Ibid.)



The CC Committee has indicated that it believes that the pre-California Supreme Court People v. Pitto opinion version of CC 3115 is correct. (Advisory Committee on Criminal Jury Instructions Report (Oct. 10, 2008), at p. 147.)

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