means of offense defense in California

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2014“Armed With a Firearm” The Reform Act does not define “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use.6 Section 1203.06, subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), defines “used a firearm” as meaning “to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section 12022.5.”7 (See also C

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2014“Armed With a Firearm” The Reform Act does not define “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use.6 Section 1203.06, subdivision (b)(3), defines “armed with a firearm” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), defines “used a firearm” as meaning “to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section 12022.5.”7 (See also C

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

2007(People v. Reaves [(1974)] 42 Cal.App.3d 852, 856-857 [ 117 Cal.Rptr. 163 ]; People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1472 [ 1 Cal.Rptr.2d 386 ]; see CALJIC No. 17.15 [‘The term “armed with a firearm” means knowingly to carry a firearm or have it available as a means of offense or defense’].) As a recent Court of Appeal decision observed, ‘a firearm that is available for use as a weapon creates the very real danger it will be used.’ (People v. Mendival (1992) 2 Cal.App.4th 562, 573 [ 3 Cal.Rptr.2d 566 ].) Therefore, ‘[i]t is the availability—the ready access—of the weapon

1992The Hays court, in reference to Pheaster , stated: “The court held ‘armed’ means possession with the intent to use the weapon as a means of offense or defense.” (Id. at p. 545.) In People v. Garcia (1986) 183 Cal.App.3d 335 [ 228 Cal.Rptr. 87 ], the defendant was interrupted during his commission of a burglary and ran out of the house he was burglarizing.

1992The Hays court, in reference to Pheaster , stated: “The court held ‘armed’ means possession with the intent to use the weapon as a means of offense or defense.” (Id. at p. 545.) In People v. Garcia (1986) 183 Cal.App.3d 335 [ 228 Cal.Rptr. 87 ], the defendant was interrupted during his commission of a burglary and ran out of the house he was burglarizing.

2015(Brimmer, supra, 230 Cal.App.4th at p. 797 ; Blakely, supra, 225 Cal.App.4th at p. 1052 [“A firearm can be under a person’s dominion and control [(and thus possession)] without it being available for use.”].) To date, the published opinions in which the courts of appeal have affirmed denial of resentencing (or reversed a grant of resentencing) based on the defendant being armed during the commission of an offense of being a felon in possession of a firearm have involved a defendant with actual as opposed to constructive possession of a firearm. ( Hicks, supra, 231 Cal.App.4th at pp. 280-281 [e

2015Section 1170.126 does not define “armed with a firearm,” but section 1203.06, subdivision (b)(3) defines the phrase as “to knowingly carry or have available for use a firearm as a means of offense or defense.” At the time the voters approved Proposition 36, that phrase had been judicially construed to mean that a defendant “is aware during the commission of the offense of the nearby presence of a gun available for use offensively or defensively, the presence of which is not a matter of happenstance.” ( Brimmer, supra, 230 Cal.App.4th at pp. 794-795, citing People v. Pitto (2008) 43 Cal.4th 228

2015(Brimmer, supra, 230 Cal.App.4th at p. 797 ; Blakely, supra, 225 Cal.App.4th at p. 1052 [“A firearm can be under a person’s dominion and control [(and thus possession)] without it being available for use.”].) To date, the published opinions in which the courts of appeal have affirmed denial of resentencing (or reversed a grant of resentencing) based on the defendant being armed during the commission of an offense of being a felon in possession of a firearm have involved a defendant with actual as opposed to constructive possession of a firearm. ( Hicks, supra, 231 Cal.App.4th at pp. 280-281 [e

2015(Brimmer, supra, 230 Cal.App.4th at p. 797 ; Blakely, supra, 225 Cal.App.4th at p. 1052 [“A firearm can be under a person’s dominion and control [(and thus possession)] without it being available for use.”].) To date, the published opinions in which the courts of appeal have affirmed denial of resentencing (or reversed a grant of resentencing) based on the defendant being armed during the commission of an offense of being a felon in possession of a firearm have involved a defendant with actual as opposed to constructive possession of a firearm. ( Hicks, supra, 231 Cal.App.4th at pp. 280-281 [e

2015(Brimmer, supra, 230 Cal.App.4th at p. 797 ; Blakely, supra, 225 Cal.App.4th at p. 1052 [“A firearm can be under a person’s dominion and control [(and thus possession)] without it being available for use.”].) To date, the published opinions in which the courts of appeal have affirmed denial of resentencing (or reversed a grant of resentencing) based on the defendant being armed during the commission of an offense of being a felon in possession of a firearm have involved a defendant with actual as opposed to constructive possession of a firearm. ( Hicks, supra, 231 Cal.App.4th at pp. 280-281 [e

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2014“Used” or “Armed with a Firearm” The Act does not define “used” or “armed with a firearm.” However, the Penal Code provides definitions to distinguish between arming and use. 7 Section 1203.06, subdivision (b)(3), defines “ ‘armed with a firearm’ ” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” Section 1203.06, subdivision (b)(2), currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, to intentionally strike or hit a human being with it, or to use it in any manner that qualifies under Section

2007Section 1203.06 currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, . . . or to use it in any manner that qualifies under Section 12022.5.” 14 This section defines “armed *1001 with a firearm” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” 15 “In People v. Chambers (1972) 7 Cal.3d 666, 672 [ 102 Cal.Rptr. 776 , 498 P.2d 1024 ], [the Supreme Court] explained the distinction between use and arming this way: ‘By employing the term “uses” instead of “while armed” the Legislature requires somet

2007Section 1203.06 currently states “ ‘used a firearm’ means to display a firearm in a menacing manner, to intentionally fire it, . . . or to use it in any manner that qualifies under Section 12022.5.” 14 This section defines “armed *1001 with a firearm” as “to knowingly carry or have available for use a firearm as a means of offense or defense.” 15 “In People v. Chambers (1972) 7 Cal.3d 666, 672 [ 102 Cal.Rptr. 776 , 498 P.2d 1024 ], [the Supreme Court] explained the distinction between use and arming this way: ‘By employing the term “uses” instead of “while armed” the Legislature requires somet

2007(People v. Washington (1971) 17 Cal.App.3d 470, 474 [ 94 Cal.Rptr. 882 ].) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest.

2007(People v. Washington (1971) 17 Cal.App.3d 470, 474 [ 94 Cal.Rptr. 882 ].) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest.

1995Thus, evidence that during the defendant's commission of a rape, a screwdriver left at the foot of the bed by the defendant's crime partner would have been visible to the defendant, was sufficient to show that the defendant was "armed" with a deadly weapon during the rape. ( People v. Martinez (1984) *998 150 Cal. App.3d 579, 605 [ 198 Cal. Rptr. 565 ].) Similarly, a burglar who, before entering a house through a garage, left a loaded handgun on a low wall outside the garage, was found to be "armed" in the commission of the burglary. ( People v. Garcia (1986) 183 Cal. App.3d 335, 340, 350-351

1995Thus, evidence that during the defendant's commission of a rape, a screwdriver left at the foot of the bed by the defendant's crime partner would have been visible to the defendant, was sufficient to show that the defendant was "armed" with a deadly weapon during the rape. ( People v. Martinez (1984) *998 150 Cal. App.3d 579, 605 [ 198 Cal. Rptr. 565 ].) Similarly, a burglar who, before entering a house through a garage, left a loaded handgun on a low wall outside the garage, was found to be "armed" in the commission of the burglary. ( People v. Garcia (1986) 183 Cal. App.3d 335, 340, 350-351

1995Thus, evidence that during the defendant's commission of a rape, a screwdriver left at the foot of the bed by the defendant's crime partner would have been visible to the defendant, was sufficient to show that the defendant was "armed" with a deadly weapon during the rape. ( People v. Martinez (1984) *998 150 Cal. App.3d 579, 605 [ 198 Cal. Rptr. 565 ].) Similarly, a burglar who, before entering a house through a garage, left a loaded handgun on a low wall outside the garage, was found to be "armed" in the commission of the burglary. ( People v. Garcia (1986) 183 Cal. App.3d 335, 340, 350-351

1995Thus, evidence that during the defendant's commission of a rape, a screwdriver left at the foot of the bed by the defendant's crime partner would have been visible to the defendant, was sufficient to show that the defendant was "armed" with a deadly weapon during the rape. ( People v. Martinez (1984) *998 150 Cal. App.3d 579, 605 [ 198 Cal. Rptr. 565 ].) Similarly, a burglar who, before entering a house through a garage, left a loaded handgun on a low wall outside the garage, was found to be "armed" in the commission of the burglary. ( People v. Garcia (1986) 183 Cal. App.3d 335, 340, 350-351

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o

1971The scope of the former differs from that of the latter in three respects, illustrated by the following table: Section 12022 Section 12022.5 "armed" "uses" "deadly weapons" "firearm" "any felony" "robbery" (and other enumerated felonies) In each of these, section 12022.5 is narrower than section 12022. (4) A person is armed with a weapon within the meaning of section 12022 when he carries the weapon as a means of offense or defense. ( People v. Pheaster, 215 Cal. App.2d 754, 759 [ 30 Cal. Rptr. 363 ].) Under Penal Code section 1203 "uses" has been construed to exclude nonvolitional discharge o