FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME
8 - CHAPTER 118
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118.2 Armed With Firearm Or Weapon: Miscellaneous Issues
118.2.1 Armed With Firearm Or Weapon: Knowledge Requirement
118.2.2 Armed With Firearm Or Weapon: Two People Can Be Personally Armed With One Firearm
118.2.3 Armed With Firearm Or Weapon: Having Firearm Within Reach Does Not Conclusively Establish Arming
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 8 - CHAPTER 118
118.2.1 Armed With Firearm Or Weapon: Knowledge Requirement
PRACTICE NOTE: Knowing and intentional possession of the firearm should be an element of an armed with a firearm offense or enhancement. (See FORECITE National™ 107.3.1 [Possession Of Weapon By Exfelons: Lack Of Knowledge Or Intent As Defense Theory].)
Hence, unawareness of the weapon or intoxication, etc. (see FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element]) may be a defense to the knowledge element of the enhancement.
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 8 - CHAPTER 118
118.2.2 Armed With A Firearm Or Weapon: Two People Can Be Personally Armed With One Firearm
PRACTICE NOTE: In People v. Mendival (CA 1992) 2 CA4th 562, 574-575 [3 CR2d 566], the court held that two people may be subjected to enhancement liability for possession of a single firearm if both individuals have the firearm available for their use.
FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 8 - CHAPTER 118
118.2.3 Armed With A Firearm Or Weapon: Having Firearm Within Reach Does Not Conclusively Establish Arming
PRACTICE NOTE: Under federal law "carrying" a firearm within the meaning of 18 USC 924(c) is established by proof that the weapon was available. (U.S. v. Torres-Medina (9th Cir. 1991) 935 F2d 1047, 1049.) However, it is error to instruct the jury that arming is shown conclusively when the firearm is in reach. (U.S. v. Perez (9th Cir. 1993) 989 F2d 1111, 1115.)