Section 3116 | CALCRIM (Jury Instructions)

A principal is armed with (an assault weapon/a machine gun/a .50 BMG
rifle) when that person:
1. Carries (an assault weapon/a machine gun/a .50 BMG rifle) [or
has (an assault weapon/a machine gun/a .50 BMG rifle) available]
for use in either offense or defense in connection with the crime[s]
charged in Count[s]
[or the lesser crime[s] of
<insert name[s] of alleged lesser offense[s]>];
[AND]
2. Knows that he or she is carrying the weapon [or has it
available](./;)
<See Bench Notes regarding element 3.>
[AND
3. Knows or reasonably should know that the weapon has
characteristics that make it (an assault weapon/a machine gun/a
.50 BMG rifle).]
<If there is an issue in the case over whether the principal was armed with
the firearm “in the commission of” the offense, see Bench Notes.>
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that the allegation has not been proved.
New January 2006; Revised August 2006, February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435].)
The Supreme Court has held that for the crime of possession of an assault weapon,
the prosecution must prove that the defendant knew or reasonably should have
known that the weapon possessed the characteristics of an assault weapon. (In re
Jorge M. (2000) 23 Cal.4th 866, 887 [98 Cal.Rptr.2d 466, 4 P.3d 297].) It is unclear
if this holding applies to an enhancement for being armed with an assault weapon.
Element 3 is provided for the court to use at its discretion.
The court should give the bracketed definition of “assault weapon,” “machine gun,”
or “.50 BMG rifle” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
When two or more defendants are charged with an arming enhancement for the
ENHANCEMENTS AND SENTENCING FACTORS
CALCRIM No. 3116
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