Section 3400 | CALCRIM (Jury Instructions)

[The People allege that the defendant possessed the following weapons:
<insert description of each weapon when multiple items
alleged>. You may not find the defendant guilty unless you all agree that
the People have proved that the defendant possessed at least one of these
weapons and you all agree on which weapon (he/she) possessed.]
New January 2006; Revised February 2012, February 2013, September 2019,
September 2020, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time [or] space,” the court has a
sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph that
begins with “The People allege that the defendant possessed the following
weapons,” inserting the items alleged.
Give the definition of deadly weapon 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.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d
156].)
Give the bracketed paragraph that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573–1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
Defenses—Instructional Duty
Evidence of voluntary intoxication or mental impairment may be admitted to show
that the defendant did not form the required mental state. (See People v. Ricardi
(1992) 9 Cal.App.4th 1427, 1432 [12 Cal.Rptr.2d 364].) The court has no sua sponte
duty to instruct on these defenses; however, the trial court must give these
instructions on request if supported by the evidence. (People v. Saille (1991) 54
Cal.3d 1103, 1119 [2 Cal.Rptr.2d 364, 820 P.2d 588] [on duty to instruct generally];
People v. Stevenson (1978) 79 Cal.App.3d 976, 988 [145 Cal.Rptr. 301] [instructions
applicable to possession of weapon with intent to assault].) See Defenses and
Insanity, CALCRIM No. 3400 et seq.
WEAPONS
CALCRIM No. 2503
367

(People v. Sarkis (1990) 222 Cal.App.3d 23, 26–28 [272 Cal.Rptr. 34].) If this
paragraph is given, the court has a sua sponte duty to instruct on aiding and
abetting. (Ibid. [court properly instructed that alibi was not a defense in an aiding
and abetting case, but erred in failing to define aiding and abetting].)
AUTHORITY
•
Burden of Proof.