Section 3115 | CALCRIM (Jury Instructions)

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Firearm Need Not Be Loaded. See People v. Steele (1991) 235 Cal.App.3d 788,
791–795 [286 Cal.Rptr. 887].
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“In Commission of” Felony/Facilitative Nexus. People v. Bland (1995) 10
Cal.4th 991, 1002 [43 Cal.Rptr.2d 77, 898 P.2d 391]; People v. Jones (2001) 25
Cal.4th 98, 109–110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch
(1996) 13 Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v.
Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].
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Presence of Gun Cannot Be Accident or Coincidence. Smith v. United States
(1993) 508 U.S. 223, 238 [113 S.Ct. 2050, 124 L.Ed.2d 138].
RELATED ISSUES
Defendant Need Not Know Principal Armed
For an enhancement charged under Penal Code section 12022(a) where the
prosecution is pursuing vicarious liability, it is not necessary for the prosecution to
prove that the defendant knew that the principal was armed. (People v. Overten
(1994) 28 Cal.App.4th 1497, 1501 [34 Cal.Rptr.2d 232].)
Conspiracy
A defendant convicted of conspiracy may also receive an enhancement for being
armed during the conspiracy, regardless of whether the defendant is convicted of the
offense alleged to be the target of the conspiracy. (People v. Becker (2000) 83
Cal.App.4th 294, 298 [99 Cal.Rptr.2d 354].)
Facilitative Nexus/Connection
Even though the Supreme Court is currently reviewing the Court of Appeal’s
decision in People v. Pitto, the committee has revised the language of this
instruction to more clearly express the facilitative nexus required in People v. Bland
(1995) 10 Cal.4th 991, 1002 [43 Cal.Rptr.2d 77, 898 P.2d 391] [contemporaneous
possession of illegal drugs and firearm not sufficient without evidence of facilitative
nexus between the two, comparing to federal law requirement of carrying a firearm
‘during and in relation to’ drug trafficking].
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 357,

5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.31 (Matthew Bender).
ENHANCEMENTS AND SENTENCING FACTORS
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Cal.4th 98, 109–110 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch
(1996) 13 Cal.4th 1001, 1011–1013 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People
v. Taylor (1995) 32 Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].
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Presence of Gun Cannot Be Accident or Coincidence. (Smith v. United States
(1993) 508 U.S. 223, 238 [113 S.Ct. 2050, 124 L.Ed.2d 138]).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 3115, Armed With Firearm.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment, §§ 357,

5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.31 (Matthew Bender).
ENHANCEMENTS AND SENTENCING FACTORS
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