SERIES 3100 ENHANCEMENTS AND SENTENCING FACTORS
F 3145 Personally Used Deadly Weapon (PC 667.61(e)(4), 1192.7(c)(23), 12022(b)(1) & (2), 12022.3)
TABLE OF CONTENTS
F 3145.1 Titles And Identification Of Parties
F 3145.1 Inst 1 Personally Used Deadly Weapon—Title
F 3145.1 Inst 2 Identification Of Prosecution And Defendant
F 3145.2 Personally Used Deadly Weapon—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3145.3 Personally Used Deadly Weapon—Language That Is Argumentative, Confusing, Etc.
F 3145.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
F 3145.4 Personally Used Deadly Weapon—Burden Of Proof Issues
F 3145.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 3145.4 Inst 2 Deletion Of Burden Shifting Language Regarding Whether The Object Would Be Used For A “Harmless Purpose”
F 3145.5 Personally Used Deadly Weapon—Elements And Definitions
F 3145.5 Inst 1 Armed With Firearm: Enumeration Of Elements
F 3145.5 Inst 2 Personal Use of Firearm: Requirement Of Threat To Use Firearm (PC 12022.5)
F 3145.5 Inst 3 Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
F 3145.5 Inst 4 Weapon Use: Nexus Requirement
F 3145 Notes
F 3145 Note 1 Personally Used Deadly Weapon—CALCRIM Cross-References And Research
F 3145 Note 2 Standard Of Prejudice For Failure To Instruct Upon Personal Use. (PC 12022(b))
F 3145 Note 3 Weapon Use: Nexus Requirement
Return to Series 3100 Table of Contents.
F 3145.1 Titles And Identification Of Parties
F 3145.1 Inst 1 Personally Used Deadly Weapon—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 3145.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 3145.2 Personally Used Deadly Weapon—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 3145.3 Personally Used Deadly Weapon—Language That Is Argumentative, Confusing, Etc.
F 3145.3 Inst 1 Modification Of Coercive Language That The Jurors “Must Decide” The Enhancement
*Modify CC 3145, paragraph 1, as follows [added language is underlined; deleted language is stricken]:
If you find the defendant guilty of the crime[s] charged in Count[s] ____ [,] [or of attempting to commit (that/those) crime[s]][ or the lesser crime[s] of ________ <insert name[s] of alleged lesser offense[s]>], you must then try to decide, if you can, whether[, for each crime,] the People have prosecution has proved the additional allegation that the defendant personally used a deadly [or dangerous] weapon during the commission [or attempted commission] of that crime. [You must try to decide, if you can, whether the People have proved this allegation for each crime and return a separate finding for each crime.]
Points and Authorities
See FORECITE F 3100.3 Inst 1.
F 3145.4 Personally Used Deadly Weapon—Burden Of Proof Issues
F 3145.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 3300.4 Inst 1.
F 3145.4 Inst 2 Deletion Of Burden Shifting Language Regarding Whether The Object Would Be Used For A “Harmless Purpose”
*Modify CC 3145, paragraph 3, last bracketed sentence as follows [deleted language is stricken]:
… [and any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless, purpose.]]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Defendant Has No Burden To Establish The Object Would Be Used For A “Harmless Purpose”—The cases which discuss the standard for evaluating whether an object is a deadly weapon do not include the “harmless purpose” language used by CALCRIM 3145. Moreover, the harmless purpose language improperly implies that the defendant has an obligation to establish that the object was going to be used for a harmless purpose. [See FORECITE F 404.2 Inst 1.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
RESEARCH NOTE—See CLARAWEB Forum, 3145.
F 3145.5 Personally Used Deadly Weapon—Elements And Definitions
F 3145.5 Inst 1 Armed With Firearm: Enumeration Of Elements
Adapt from FORECITE F 3115.5 Inst 1.
F 3145.5 Inst 2 Personal Use of Firearm: Requirement Of Threat To Use Firearm (PC 12022.5)
See FORECITE F 3146.5 Inst 2.
F 3145.5 Inst 3 Determination Of Deadly Weapon: Two-Pronged Jury Finding Required
See FORECITE F 9.02a.
F 3145.5 Inst 4 Weapon Use: Nexus Requirement
There is no sua sponte duty to instruct, beyond the provisions of CJ17.15, that there must be a facilitative nexus between the possession of illegal drugs and a firearm, or that, if defendant’s testimony was credited, the proximity of the gun to the drugs was accidental and coincidental and had no purpose or effect as to the drug offenses. (People v. Pitto (2008) 43 C4th 228, 240.)
F 3145 NOTES
F 3145 Note 1 Personally Used Deadly Weapon—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 3146 Personally Used Firearm
CALCRIM 3147 Personally Used Firearm: Assault Weapon, Machine Gun, Or .50 BMG Rifle
CALCRIM 3148 Personally Used Firearm: Intentional Discharge
CALCRIM 3149 Personally Used Firearm: Intentional Discharge Causing Injury Or Death
CALCRIM 3150 Personally Used Firearm: Intentional Discharge and Discharge Causing Injury Or Death Both Charged
Research Notes:
See CLARAWEB Forum, Enhancements and Sentencing Factors—Series 3100.
F 3145 Note 2 Standard Of Prejudice For Failure To Instruct Upon Personal Use. (PC 12022(b))
[See FORECITE EA V(L).]
CALJIC NOTE: See FORECITE F 17.16 n1.
F 3145 Note 3 Weapon Use: Nexus Requirement
There is no sua sponte duty to instruct, beyond the provisions of CJ17.15, that there must be a facilitative nexus between the possession of illegal drugs and a firearm, or that, if defendant’s testimony was credited, the proximity of the gun to the drugs was accidental and coincidental and had no purpose or effect as to the drug offenses. (People v. Pitto (2008) 43 C4th 228, 240.)
However, modification of the CALCRIM instruction (CC 3145) may be necessary. (See FORECITE F 3115.3 Inst 1.)
