California Criminal Jury Instructions (CALCRIM) (2017)

2500. Illegal Possession, etc., of Weapon

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A. POSSESSION OF ILLEGAL OR DEADLY WEAPON
2500.Illegal Possession, etc., of Weapon
The defendant is charged [in Count ] with unlawfully (possessing/
manufacturing/causing to be manufactured/importing/keeping for sale/
offering or exposing for sale/giving/lending/buying/receiving) a weapon,
specifically (a/an) <insert type of weapon from> [in violation
of Penal Code section[s] <insert appropriate code
section[s]>].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/manufactured/caused to be
manufactured/imported into California/kept for sale/offered or
exposed for sale/gave/lent/bought/received) (a/an)
<insert type of weapon>;
2. The defendant knew that (he/she)
(possessed/manufactured/caused to be manufactured/imported/
kept for sale/offered or exposed for sale/gave/lent/bought/
received) the <insert type of weapon>;
[AND]
<Alternative 3A—object capable of innocent uses>
[3. The defendant (possessed/manufactured/caused to be
manufactured/imported/kept for sale/offered or exposed for sale/
gave/lent/bought/received) the object as a weapon (;/.)]
<Alternative 3B—object designed solely for use as weapon>
[3. The defendant knew that the object (was (a/an) __________
<insert characteristics of weapon, e.g., “unusually short shotgun,
penknife containing stabbing instrument”>/could be used
<insert description of weapon, e.g., “as a stabbing
weapon,” or “for purposes of offense or defense”>).]
<Give element 4 only if defendant is charged with offering or exposing
for sale.>
[AND
4. The defendant intended to sell it.]
<Give only if alternative 3A is given.>
[When deciding whether the defendant (possessed/manufactured/caused
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to be manufactured/imported/kept for sale/offered or exposed for sale/
gave/lent/bought/received) the object as a weapon, consider all the
surrounding circumstances relating to that question, including when and
where the object was (possessed/manufactured/caused to be
manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received)[,] [and] [where the defendant was going][,] [and]
[whether the object was changed from its standard form][,] and any
other evidence that indicates whether the object would be used for a
dangerous, rather than a harmless, purpose.]
<Give only if alternative 3B is given.>
[The People do not have to prove that the defendant intended to use the
object as a weapon.]
(A/An) <insert type of weapon> means <insert
appropriate definition>.
<Give only if the weapon used has specific characteristics of which the
defendant must have been aware.>
[A <insert type of weapon specified in element 3B> is
<insert defining characteristics of weapon>.
[The People do not have to prove that the object was (concealable[,]/
[or] carried by the defendant on (his/her) person[,]/ [or] (displayed/
visible)).]]
[(A/An) <insert prohibited firearm> does not need to be in
working order if it was designed to shoot and appears capable of
shooting.]
[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 has (control over it/ [or] the right to
control it), either personally or through another person.]
[The People allege that the defendant (possessed/manufactured/caused to
be manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received) 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/manufactured/caused to be
manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received) at least one of these weapons and you all agree on
which weapon (he/she) (possessed/manufactured/ caused to be
manufactured/imported/kept for sale/offered or exposed for sale/gave/
lent/bought/received).]
<Defense: Statutory Exemptions>
[The defendant did not unlawfully (possess/manufacture/cause to be
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manufactured/import/keep for sale/offer or expose for sale/give/lend/buy/
receive) (a/an) <insert type of weapon> if
<insert exception>. The People have the burden of proving beyond a
reasonable doubt that the defendant unlawfully (possessed/
manufactured/caused to be manufactured/imported/kept for sale/offered
or exposed for sale/gave/lent/bought/received) (a/an)
<insert type of weapon>. If the People have not met this burden, you
must find the defendant not guilty of this crime.]
New January 2006; Revised August 2006, April 2008, February 2012, February
2015, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Penal Code section 12020 has been repealed. In its place, the legislature enacted
numerous new statutes that became effective January 1, 2012. Whenever a blank in
the instruction calls for inserting a type of weapon, an exception, or a definition,
refer to the appropriate new Penal Code section.
Element 3 contains the requirement that the defendant know that the object is a
weapon. A more complete discussion of this issue is provided in the Commentary
section below. Select alternative 3A if the object is capable of innocent uses. In
such cases, the court has a sua sponte duty to instruct on when an object is
possessed “as a weapon.” (People v. Fannin, supra, 91 Cal.App.4th at p. 1404;
People v. Grubb (1965) 63 Cal.2d 614, 620–621, fn. 9 [47 Cal.Rptr. 772, 408 P.2d
100].)
Select alternative 3B if the object “has no conceivable innocent function” (People
v. Fannin (2001) 91 Cal.App.4th 1399, 1405 [111 Cal.Rptr.2d 496]), or when the
item is specifically designed to be one of the weapons defined in the Penal Code
(see People v. Gaitan (2001) 92 Cal.App.4th 540, 547 [111 Cal.Rptr.2d 885]).
Give element 4 only if the defendant is charged with offering or exposing for sale.
(See People v. Jackson (1963) 59 Cal.2d 468, 469–470 [30 Cal.Rptr. 329, 381 P.2d
1].)
For any of the weapons not defined in the Penal Code, use an appropriate definition
from the case law, where available.
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 beginning “The People allege that the defendant possessed the following
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weapons,” inserting the items alleged. Also make the appropriate adjustments to the
language of the instruction to refer to multiple weapons or objects.
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt about the existence of one
of the statutory exemptions, the court has a sua sponte duty to give the bracketed
instruction on that defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
beginning, “The defendant did not unlawfully . . . .”.
AUTHORITY
• Elements. Pen. Code, §§ 19200, 20310, 20410, 20510, 20610, 20710, 20910,
21110, 21810, 22010, 22210, 24310, 24410, 24510, 24610, 24710, 30210,
31500, 32310, 32311, 32900, 33215, 33600.
• Need Not Prove Intent to Use. People v. Rubalcava (2000) 23 Cal.4th 322,
328 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Grubb (1965) 63 Cal.2d 614,
620–621, fn. 9 [47 Cal.Rptr. 772, 408 P.2d 100].
• Knowledge Required. People v. Rubalcava (2000) 23 Cal.4th 322, 331–332
[96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Gaitan (2001) 92 Cal.App.4th 540,
547 [111 Cal.Rptr.2d 885].
• Specific Intent Required for Offer to Sell. People v. Jackson (1963) 59 Cal.2d
468, 469–470 [30 Cal.Rptr. 329, 381 P.2d 1].
• Specific Intent Includes Knowledge of Forbidden Characteristics of
Weapon. People v. King (2006) 38 Cal.4th 617, 627–628 [42 Cal.Rptr.3d 743,
133 P.3d 636].
• Innocent Object—Must Prove Possessed as Weapon. People v. Grubb (1965)
63 Cal.2d 614, 620–621 [47 Cal.Rptr. 772, 408 P.2d 100]; People v. Fannin
(2001) 91 Cal.App.4th 1399, 1404 [111 Cal.Rptr.2d 496].
• Definition of Blackjack, etc. People v. Fannin (2001) 91 Cal.App.4th 1399,
1402 [111 Cal.Rptr.2d 496]; People v. Mulherin (1934) 140 Cal.App. 212, 215
[35 P.2d 174].
• Firearm Need Not Be Operable. People v. Favalora (1974) 42 Cal.App.3d
988, 991 [117 Cal.Rptr. 291].
• Measurement of Sawed-Off Shotgun. People v. Rooney (1993) 17 Cal.App.4th
1207, 1211–1213 [21 Cal.Rptr.2d 900]; People v. Stinson (1970) 8 Cal.App.3d
497, 500 [87 Cal.Rptr. 537].
• Measurement of Fléchette Dart. People v. Olmsted (2000) 84 Cal.App.4th 270,
275 [100 Cal.Rptr.2d 755].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242–243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge
M. (2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
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• Knowledge of Specific Characteristics of Weapon. People v. King (2006) 38
Cal.4th 617, 628].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 211–212.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01 (Matthew Bender).
COMMENTARY
Element 3—Knowledge
“Intent to use a weapon is not an element of the crime of weapon possession.”
(People v. Fannin (2001) 91 Cal.App.4th 1399, 1404 [111 Cal.Rptr.2d 496].)
However, interpreting now-repealed Penal Code section 12020(a)(4), possession of
a concealed dirk or dagger, the Supreme Court stated that “[a] defendant who does
not know that he is carrying the weapon or that the concealed instrument may be
used as a stabbing weapon is . . . not guilty of violating section 12020.” (People v.
Rubalcava (2000) 23 Cal.4th 322, 331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52].)
Applying this holding to possession of other weapons prohibited under now-
repealed Penal Code section 12020(a), the courts have concluded that the defendant
must know that the object is a weapon or may be used as a weapon, or must
possess the object “as a weapon.” (People v. Gaitan (2001) 92 Cal.App.4th 540,
547 [111 Cal.Rptr.2d 885]; People v. Taylor (2001) 93 Cal.App.4th 933, 941 [114
Cal.Rptr.2d 23]; People v. Fannin, supra, 91 Cal.App.4th at p. 1404.)
In People v. Gaitan, supra, 92 Cal.App.4th at p. 547, for example, the court
considered the possession of “metal knuckles,” defined in now-repealed Penal Code
section 12020(c)(7) as an object “worn for purposes of offense or defense.” The
court held that the prosecution does not have to prove that the defendant intended
to use the object for offense or defense but must prove that the defendant knew that
“the instrument may be used for purposes of offense or defense.” (Id. at p. 547.)
Similarly, in People v. Taylor, supra, 93 Cal.App.4th at p. 941, involving possession
of a cane sword, the court held that “[i]n order to protect against the significant
possibility of punishing innocent possession by one who believes he or she simply
has an ordinary cane, we infer the Legislature intended a scienter requirement of
actual knowledge that the cane conceals a sword.”
Finally, People v. Fannin, supra, 91 Cal.App.4th at p. 1404, considered whether a
bicycle chain with a lock at the end met the definition of a “slungshot.” The court
held that “if the object is not a weapon per se, but an instrument with ordinary
innocent uses, the prosecution must prove that the object was possessed as a
weapon.” (Ibid. [emphasis in original]; see also People v. Grubb (1965) 63 Cal.2d
614, 620–621 [47 Cal.Rptr. 772, 408 P.2d 100] [possession of modified baseball
bat].)
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In element 3 of the instruction, the court should give alternative 3B if the object
has no innocent uses, inserting the appropriate description of the weapon. If the
object has innocent uses, the court should give alternative 3A. The court may
choose not to give element 3 if the court concludes that a previous case holding
that the prosecution does not need to prove knowledge is still valid authority.
However, the committee would caution against this approach in light of Rubalcava
and In re Jorge M. (See People v. Schaefer (2004) 118 Cal.App.4th 893, 904–905
[13 Cal.Rptr.3d 442] [observing that, since In re Jorge M., it is unclear if the
prosecution must prove that the defendant knew shotgun was “sawed off” but that
failure to give instruction was harmless if error].)
It is not unlawful to possess a large-capacity magazine or large-capacity conversion
kit. It is unlawful, however, to receive or buy these items after January 1, 2014, the
effective date of Penal Code sections 32310 and 32311.
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