CALCRIM No. 2746. Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp (Pen. Code, § 4574(a))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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2746.Possession of Firearm, Deadly Weapon, or Explosive in a
Jail or County Road Camp (Pen. Code, § 4574(a))
The defendant is charged [in Count ] with possessing a weapon
while confined in a (jail/county road camp) [in violation of Penal Code
section 4574(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was lawfully confined in a (jail/county road camp);
2. While confined there, the defendant [unlawfully] possessed [(a/
an)] (firearm[,]/ [or] deadly weapon[,]/ [or] explosive[,]/ [or] tear
gas[,]/ [or] tear gas weapon) within the (jail/county road camp);
3. The defendant knew that (he/she) possessed the (firearm[,]/ [or]
deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas
weapon);
AND
4. The defendant knew that the object was [(a/an)] (firearm[,]/ [or]
deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas
weapon).
[A jail is a place of confinement where people are held in lawful
custody.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.] [A firearm need not be in
working order if it was designed to shoot and appears capable of
shooting.]
[As used here, a deadly weapon is any weapon, instrument, or object that
has the reasonable potential of being used in a manner that would cause
great bodily injury or death.] [Great bodily injury means significant or
substantial physical injury. It is an injury that is greater than minor or
moderate harm.]
[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2)
which is capable of a relatively instantaneous or rapid release of gas and
heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[<insert type of explosive from Health & Saf. Code, § 12000>
(is/are) [an] explosive[s].]
631
[Tear gas is a liquid, gaseous, or solid substance intended to produce
temporary physical discomfort or permanent injury through being
vaporized or otherwise dispersed in the air.]
[A tear gas weapon is a shell, cartridge, or bomb capable of being
discharged or exploded to release or emit tear gas.] [A tear gas weapon
[also] means a revolver, pistol, fountain pen gun, billy, or other device,
portable or fixed, intended specifically to project or release tear gas.] [A
tear gas weapon does not include a device regularly manufactured and
sold for use with firearm ammunition.]
The People do not have to prove that the defendant used or intended to
use the object as a weapon.
[You may consider evidence that the object could be used in a harmless
way in deciding whether the object is a deadly weapon as defined here.]
[The People do not have to prove that the object was (concealable[,]/ [or]
carried by the defendant on (his/her) person[,]/ [or] (displayed/visible)).]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person knowingly has (control over it/ [or] the right
to control it), either personally or through another person).]
[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 all of you 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.]
<Defense: Possession Authorized>
[The defendant is not guilty of this offense if (he/she) was authorized to
possess the weapon by (law[,]/ [or] a person in charge of the (jail/county
road camp)[,]/ [or] an officer of the (jail/county road camp) empowered
by the person in charge of the (jail/camp) to give such authorization).
The People have the burden of proving beyond a reasonable doubt that
the defendant was not authorized to possess the weapon. If the People
have not met this burden, you must find the defendant not guilty of this
offense.]
New January 2006; Revised February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
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If the prosecution alleges under a single count that the defendant possessed multiple
weapons, 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]; People v. Rowland
(1999) 75 Cal.App.4th 61, 65 [88 Cal.Rptr.2d 900].) Give the bracketed paragraph
that begins with “The People allege that the defendant possessed,” inserting the
items alleged.
Note that the definition of “deadly weapon” in the context of Penal Code section
4574 differs from the definition given in other instructions. (People v. Martinez
(1998) 67 Cal.App.4th 905, 909 [79 Cal.Rptr.2d 334].)
If there is sufficient evidence of a harmless use for the object possessed, give the
bracketed sentence that begins with “You may consider evidence that the object
could be used in a harmless way . . . .” (People v. Savedra (1993) 15 Cal.App.4th
738, 743-744 [19 Cal.Rptr.2d 115].)
If there is sufficient evidence that the defendant was authorized to possess the
weapon, give the bracketed word “unlawfully” in element 2. Give also the bracketed
paragraph headed “Defense: Possession Authorized.”
It is unclear if the defense of momentary possession for disposal applies to a charge
of weapons possession in a penal institution. In People v. Brown (2000) 82
Cal.App.4th 736, 740 [98 Cal.Rptr.2d 519], the court held that the defense was not
available on the facts of the case before it but declined to consider whether “there
can ever be a circumstance justifying temporary possession in a penal institution.”
(Ibid. [emphasis in original].) The California Supreme Court has reaffirmed that the
momentary possession defense is available to a charge of illegal possession of a
weapon. (People v. Martin (2001) 25 Cal.4th 1180, 1191-1192 [108 Cal.Rptr.2d
599, 25 P.3d 1081].) However, the Supreme Court has yet to determine whether the
defense is available in a penal institution. If the trial court determines that an
instruction on momentary possession is warranted on the facts of the case before it,
give a modified version of the instruction on momentary possession contained in
CALCRIM No. 2510, Possession of Firearm by Person Prohibited Due to
Conviction - No Stipulation to Conviction.
If there is sufficient evidence of imminent death or bodily injury, the defendant may
be entitled to an instruction on the defense of duress or threats. (People v. Otis
(1959) 174 Cal.App.2d 119, 125-126 [344 P.2d 342].) Give CALCRIM No. 3402,
Duress or Threats, modified as necessary.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
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AUTHORITY
• Elements. Pen. Code, § 4574(a).
• Firearm Defined. Pen. Code, § 16520.
• Explosive Defined. Health & Saf. Code, § 12000.
• Tear Gas Defined. Pen. Code, § 17240.
• Tear Gas Weapon Defined. Pen. Code, § 17250.
• Deadly Weapon Defined. People v. Martinez (1998) 67 Cal.App.4th 905, 909 [79
Cal.Rptr.2d 334].
• Jail Defined. People v. Carter (1981) 117 Cal.App.3d 546, 550 [172 Cal.Rptr.
838].
• Knowledge. See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96
Cal.Rptr.2d 735, 1 P.3d 52]; People v. James (1969) 1 Cal.App.3d 645, 650 [81
Cal.Rptr. 845].
• Harmless Use. People v. Savedra (1993) 15 Cal.App.4th 738, 743-744 [19
Cal.Rptr.2d 115]; People v. Martinez (1998) 67 Cal.App.4th 905, 910-913 [79
Cal.Rptr.2d 334].
• Unanimity. People v. Wolfe (2003) 114 Cal.App.4th 177, 184-185 [7 Cal.Rptr.3d
483].
• Firearm Need Not Be Operable. People v. Talkington (1983) 140 Cal.App.3d
557, 563 [189 Cal.Rptr. 735].
• Constructive vs. Actual Possession. People v. Reynolds (1988) 205 Cal.App.3d
776, 782, fn. 5 [252 Cal.Rptr. 637], overruled on other grounds, People v. Flood
(1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
RELATED ISSUES
Administrative Punishment Does Not Bar Criminal Action
“[P]rison disciplinary measures do not bar subsequent prosecution in a criminal
action for violation of a penal statute prohibiting the same act which was the basis
of the prison discipline by virtue of the proscription against double punishment
provided in section 654 [citation] or by the proscription against double jeopardy
provided in the California Constitution (art. I, § 13) and section 1023.” (People v.
Vatelli (1971) 15 Cal.App.3d 54, 58 [92 Cal.Rptr. 763]; [citing People v. Eggleston
(1967) 255 Cal.App.2d 337, 340 [63 Cal.Rptr. 104]].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 244, 248.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94,
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Prisoners’ Rights, § 94.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01 (Matthew Bender).
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