Weapon Use Enhancement Jury Instructions In California

In People v. Wims (1995) 10 Cal. 4th 293, 303, 895 P.2d 77, the California Supreme Court held: "A defendant is entitled to proper jury instructions regarding the meaning of a weapon use enhancement allegation which is tried to a jury. (People v. Najera (1972) 8 Cal. 3d 504, 510, 105 Cal. Rptr. 345, 503 P.2d 1353 (regarding 12022.5; approved in part and disapproved in part People v. Wiley (1995) 9 Cal. 4th 580, 588, 889 P.2d 541 .) In Wims, the Supreme Court concluded that the failure to properly instruct on a weapon use enhancement allegation did not violate the right to trial by jury under the Sixth Amendment as incorporated by the Fourteenth Amendment. (Ibid.) Citing McMillan v. Pennsylvania (1986) 477 U.S. 79, 89-90, 91 L. Ed. 2d 67, 106 S. Ct. 2411, the California Supreme Court in Wims concluded: "The United States Supreme Court, moreover, has specifically determined the Sixth Amendment does not require jury fact-finding when a statute--like section 12022(b)--makes weapon possession a sentencing factor rather than an element of a crime." (People v. Wims, supra, 10 Cal. 4th at p. 305.) As a result, because no federal constitutional right was implicated, the failure to instruct on an element of a firearm enhancement was subject to the harmless error test articulated in People v. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243. The Supreme Court in Wims concluded, "Thus, the trial court's failure to instruct on the elements of a section 12022(b) sentence enhancement is 'misdirection of the jury' for which we are constitutionally forbidden to reverse absent a 'miscarriage of justice.' (Cal. Const., art. VI, 13.)" (People v. Wims, supra, 10 Cal. 4th at p. 315.) In the respondent's brief, the Attorney General relied solely on Wims for the proposition that no reversal may occur because of instructional error in connection with the section 12022.53, subdivision (d) enhancement unless there has been a miscarriage of justice under the standard of People v. Watson, supra, 46 Cal. 2d at page 836.