Section 3131 | 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. 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].
RELATED ISSUES
Defendant Not Present When Drugs and Weapon Found
In People v. Bland (1995) 10 Cal.4th 991, 995 [43 Cal.Rptr.2d 77, 898 P.2d 391],
the defendant was convicted of possession of a controlled substance and an
enhancement for being armed during that offense despite the fact that he was not
present when the police located the illegal drugs and firearm. The Court held that
there was sufficient evidence to support the arming enhancement, stating:
[W]hen the prosecution has proved a charge of felony drug possession, and the
evidence at trial shows that a firearm was found in close proximity to the illegal
drugs in a place frequented by the defendant, a jury may reasonably infer: (1)
that the defendant knew of the firearm’s presence; (2) that its presence together
with the drugs was not accidental or coincidental; and (3) that, at some point
during the period of illegal drug possession, the defendant had the firearm close
at hand and thus available for immediate use to aid in the drug offense. These
reasonable inferences, if not refuted by defense evidence, are sufficient to
warrant a determination that the defendant was “armed with a firearm in the
commission” of a felony within the meaning of section 12022.
(Ibid.)
The Bland case did not state that the jury should be specifically instructed in these
inferences, and it appears that no special instruction was given in Bland. If the
prosecution requests a special instruction on this issue, the court may consider using
the following language:
If the People have proved that a firearm was found close to the
<insert type of controlled substance allegedly possessed> in a place where the
defendant was frequently present, you may but are not required to conclude that:

The defendant knew the firearm was present;

It was not accidental or coincidental that the firearm was present together
with the drugs;
AND

During at least part of the time that the defendant allegedly possessed the
illegal drug, (he/she) had the firearm close at hand and available for
immediate use to aid in the drug offense.
If you find beyond a reasonable doubt that the evidence supports these
conclusions, you may but are not required to conclude that the defendant was
personally armed with a firearm in the commission [or attempted commission]
ENHANCEMENTS AND SENTENCING FACTORS
CALCRIM No. 3131
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