California Criminal Jury Instructions (CALCRIM) (2017)

2502. Possession, etc., of Switchblade Knife

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2502.Possession, etc., of Switchblade Knife (Pen. Code, § 21510)
The defendant is charged [in Count ] with unlawfully (possessing
in a vehicle/carrying on (his/her) person/selling/offering or exposing for
sale/giving/lending/transferring) a switchblade knife [in violation of
Penal Code section 21510].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed in the (passenger’s/ [or] driver’s) area
of a motor vehicle in a (public place/place open to the public)/
carried on (his/her) person/sold/offered or exposed for sale/gave/
lent/transferred) a switchblade knife [to another person];
2. The blade of the knife was two or more inches long;
3. The defendant knew that (he/she) (possessed/carried/sold/offered
or exposed for sale/gave/lent/transferred) it [to another person];
[AND]
4. The defendant knew that it had the characteristics of a
switchblade(;/.)
<Give element 5 only if defendant is charged with offering or exposing
for sale.>
[AND
5. The defendant intended to sell it.]
Aswitchblade knife is a knife that looks like a pocketknife and has a
blade that can be released automatically by a flick of a button, pressure
on the handle, flip of the wrist or other mechanical device, or is released
by the weight of the blade or any other mechanism. A switchblade
includes a spring-blade knife, snap-blade knife, gravity knife, or any
other similar type knife. A switchblade knife does not include a knife
that opens with one hand utilizing thumb pressure applied solely to the
blade of the knife or a thumb stud attached to the blade, if the knife
has a detent or other mechanism that provides resistance that must be
overcome in opening the blade or that biases the blade back toward its
closed position.
[The (passenger’s/ [or] driver’s) area means that part of a motor vehicle
that is designed to carry the (driver/ [and] passengers), including the
interior compartment or space within.]
The People do not have to prove that the defendant used or intended to
use the alleged switchblade knife as a weapon.
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[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 in a vehicle/carried/
sold/offered or exposed for sale/gave/lent/transferred) the following
switchblade knives: <insert description of each knife 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
in a vehicle/carried/sold/offered or exposed for sale/gave/lent/
transferred) at least one of these knives which was a switchblade and
you all agree on which switchblade knife (he/she) (possessed in a
vehicle/carried/sold/offered or exposed for sale/gave/lent/transferred).]
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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
switchblade knives,” inserting the items alleged.
AUTHORITY
• Elements. Pen. Code, § 21510.
Need Not Prove Intent to Use. See People v. Rubalcava (2000) 23 Cal.4th
322, 328 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Mendoza (1967) 251
Cal.App.2d 835, 842–843 [60 Cal.Rptr. 5].
• Knowledge Required. See People v. Rubalcava (2000) 23 Cal.4th 322,
331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52].
• 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].
• 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].
• Passenger’s or Driver’s Area Defined. Pen. Code, § 16965.
Secondary Sources
CALCRIM No. 2502 WEAPONS
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2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 172.
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[1][a] (Matthew Bender).
RELATED ISSUES
Butterfly and Tekna Knives Included
Butterfly and Tekna knives are prohibited switchblades under Penal Code section
17235 [formerly section 653k]. (People ex rel. Mautner v. Quattrone (1989) 211
Cal.App.3d 1389, 1395 [260 Cal.Rptr. 44].)
Broken-Spring Knife
Where the spring mechanism on the knife did not work, the court found insufficient
evidence that the knife was a prohibited switchblade under Penal Code section
17235 [formerly section 653k]. (In re Roderick S. (1981) 125 Cal.App.3d 48, 52
[177 Cal.Rptr. 800].)
Public Place
On the meaning of “public place,” see In re Danny H. (2002) 104 Cal.App.4th 92,
98 [128 Cal.Rptr.2d 222], discussing the meaning of public place in Penal Code
section 594.1. See also CALCRIM No. 2966, Disorderly Conduct: Under the
Influence in Public, and cases cited therein.
WEAPONS CALCRIM No. 2502
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