California Criminal Jury Instructions (CALCRIM) (2017)

2510. Possession of Firearm by Person Prohibited Due to Conviction - No Stipulation to Conviction

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B. POSSESSION OF FIREARM BY PERSON
PROHIBITED
2510.Possession of Firearm by Person Prohibited Due to
Conviction—No Stipulation to Conviction (Pen. Code, §§ 29800,
29805, 29820, 29900)
The defendant is charged [in Count ] with unlawfully possessing
a firearm [in violation of <insert appropriate code
section[s]>].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
[AND]
3. The defendant had previously been convicted of (a felony/two
offenses of brandishing a firearm/the crime of
<insert misdemeanor offense from Pen. Code, § 29805 or Pen. Code,
§ 23515(a), (b), or (d), or a juvenile finding from Pen. Code,
§ 29820>)(;/.)
[AND]
<Alternative 4A—give only if the defendant is charged under Pen. Code,
§ 29805.>
[4. The previous conviction was within 10 years of the date the
defendant possessed the firearm.]
<Alternative 4B—give only if the defendant is charged under Pen. Code,
§ 29820.>
[4. The defendant was under 30 years old at the time (he/she)
possessed the firearm.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is expelled or discharged through a barrel by the force of an
explosion or other form of combustion. [The frame or receiver of such a
firearm is also a firearm for the purpose of this instruction.]]
<Do not use the language below unless the other instruction defines
firearm in the context of a crime charged pursuant to Pen. Code, § 29800.>
[The term firearm is defined in another instruction.]
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[A firearm does not need to be in working order if it was designed to
shoot and appears capable of shooting.]
[A juvenile court finding is the same as a conviction.]
[A conviction of <insert name of other-state or federal
offense> is the same as a conviction for a felony.]
[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.]
[You may consider evidence, if any, that the defendant was previously
convicted of a crime only in deciding whether the People have proved
this element of the crime [or for the limited purpose of
<insert other permitted purpose, e.g., assessing defendant’s credibility>]. Do
not consider such evidence for any other purpose.]
[The People allege that the defendant (owned/purchased/received/
possessed) the following firearms: <insert description of
each firearm when multiple firearms alleged>. You may not find the
defendant guilty unless all of you agree that the People have proved
that the defendant (owned/purchased/received/possessed) at least one of
the firearms, and you all agree on which firearm (he/she) (owned/
purchased/received/possessed).]
<Defense: Momentary Possession>
[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove the defense of momentary
possession. In order to establish this defense, the defendant must prove
that:
1. (He/She) possessed the firearm only for a momentary or
transitory period;
2. (He/She) possessed the firearm in order to (abandon[,]/ [or]
dispose of[,]/ [or] destroy) it;
AND
3. (He/She) did not intend to prevent law enforcement officials from
seizing the firearm.
The defendant has the burden of proving each element of this defense
by a preponderance of the evidence. This is a different standard of
proof than proof beyond a reasonable doubt. To meet the burden of
proof by a preponderance of the evidence, the defendant must prove
that it is more likely than not that each element of the defense is true.]
<Defense: Justifiable Possession>
[If you conclude that the defendant possessed a firearm, that possession
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was not unlawful if the defendant can prove that (he/she) was justified
in possessing the firearm. In order to establish this defense, the
defendant must prove that:
1. (He/She) (found the firearm/took the firearm from a person who
was committing a crime against the defendant);
[AND]
2. (He/She) possessed the firearm no longer than was necessary to
deliver or transport the firearm to a law enforcement agency for
that agency to dispose of the weapon(;/.)
[AND
3. If the defendant was transporting the firearm to a law
enforcement agency, (he/she) gave prior notice to the law
enforcement agency that (he/she) would be delivering a firearm
to the agency for disposal.]]
The defendant has the burden of proving each element of this defense
by a preponderance of the evidence. This is a different standard of
proof than proof beyond a reasonable doubt. To meet the burden of
proof by a preponderance of the evidence, the defendant must prove
that it is more likely than not that each element of the defense is true.
New January 2006; Revised April 2010, February 2012, August 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime. Use this instruction only if the defendant does not stipulate to the prior
conviction. (People v. Sapp (2003) 31 Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d
433]; People v. Valentine (1986) 42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d
913].) If the defendant stipulates, use CALCRIM No. 2511, Possession of Firearm
by Person Prohibited Due to Conviction—Stipulation to Conviction. (People v.
Sapp, supra, 31 Cal.4th at p. 261; People v. Valentine, supra, 42 Cal.3d at p. 173.)
The court has a sua sponte duty to instruct on the union of act and specific intent
or mental state. (People v. Alvarez (1996) 14 Cal.4th 155, 220 [58 Cal.Rptr.2d 385,
926 P.2d 365].) Therefore, because of the knowledge requirement in element 2 of
this instruction, the court must give CALCRIM No. 251, Union of Act and Intent:
Specific Intent or Mental State, together with this instruction. Nevertheless, the
knowledge requirement in element 2 does not require any “specific intent.”
If the prosecution alleges under a single count that the defendant possessed
multiple firearms and the possession was “fragmented as to time . . . [or] space,”
the court has a sua sponte duty to instruct on unanimity. (People v. Wolfe (2003)
114 Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph
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beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
Element 4 should be given only if the defendant is charged under Penal Code
section 29805, possession within 10 years of a specified misdemeanor conviction,
or Penal Code section 29820, possession by someone under 30 years old with a
specified juvenile finding.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions on crimes based on Penal Code
section 29800. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “You may consider . . . .” (People v. Valentine
(1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There is no sua
sponte duty to give the limiting instruction, and the defense may prefer that no
limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139
[2 Cal.Rptr.3d 380].)
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary
possession applies to a charge of violating now-repealed Penal Code section 12021.
This is an affirmative defense, and the defense bears the burden of establishing it
by a preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457,
478–481 [122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been
presented, the court has a sua sponte duty to give the bracketed paragraph,
“Defense: Momentary Possession.”
Penal Code section 29850 states that a violation of the statute is “justifiable” if the
listed conditions are met. This is an affirmative defense, and the defense bears the
burden of establishing it by a preponderance of the evidence. (Ibid.) If sufficient
evidence has been presented, the court has a sua sponte duty to give the bracketed
paragraph, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
• Elements. Pen. Code, §§ 23515, 29800, 29805, 29820, 29900; People v.
Snyder (1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• Presenting Evidence of Prior Conviction to Jury. People v. Sapp (2003) 31
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Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine (1986)
42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
• Accidental Possession. People v. Jeffers (1996) 41 Cal.App.4th 917, 922 [49
Cal.Rptr.2d 86].
• Lack of Knowledge of Nature of Conviction Not a Defense. People v. Snyder
(1982) 32 Cal.3d 590, 593 [186 Cal.Rptr. 485, 652 P.2d 42].
• Momentary Possession Defense. People v. Martin (2001) 25 Cal.4th 1180,
1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Hurtado (1996) 47
Cal.App.4th 805, 814 [54 Cal.Rptr.2d 853]; People v. Mijares (1971) 6 Cal.3d
415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115].
• 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].
• Possession of Frame or Receiver Sufficient but not Necessary For Crimes
Charged Under [Now-Superseded] Section 12021. People v. Arnold (2006)
145 Cal.App.4th 1408, 1414 [52 Cal.Rptr.3d 545].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 233–237.
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. 93,
Disabilities Flowing From Conviction, § 93.06 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][d] (Matthew Bender).
LESSER INCLUDED OFFENSES
Neither possessing firearm after conviction of felony nor possessing firearm after
conviction of specified violent offense is a lesser included offense of the other.
(People v. Sanders (2012) 55 Cal.4th 731, 739–740 [149 Cal.Rptr.3d 26, 288 P.3d
83].
RELATED ISSUES
Proof of Prior Conviction
The trial court “has two options when a prior conviction is a substantive element of
a current charge: Either the prosecution proves each element of the offense to the
jury, or the defendant stipulates to the conviction and the court ‘sanitizes’ the prior
by telling the jury that the defendant has a prior felony conviction, without
specifying the nature of the felony committed.” (People v. Sapp (2003) 31 Cal.4th
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240, 261 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v. Valentine (1986) 42 Cal.3d
170, 173 [228 Cal.Rptr. 25, 720 P.2d 913].)
Lack of Knowledge of Status of Conviction Not a Defense
“[R]egardless of what she reasonably believed, or what her attorney may have told
her, defendant was deemed to know under the law that she was a convicted felon
forbidden to possess concealable firearms. Her asserted mistake regarding her
correct legal status was a mistake of law, not fact. It does not constitute a defense
to [now-superseded] section 12021.” (People v. Snyder (1982) 32 Cal.3d 590, 593
[186 Cal.Rptr. 485, 652 P.2d 42].)
Out-of-State Convictions
For an out-of-state conviction, it is sufficient if the offense is a felony under the
laws of the “convicting jurisdiction.” (People v. Shear (1999) 71 Cal.App.4th 278,
283 [83 Cal.Rptr.2d 707].) The prosecution does not have to establish that the
offense would be a felony under the laws of California. (Ibid.) Even if the
convicting jurisdiction has restored the defendant’s right to possess a firearm, the
defendant may still be convicted of violating [now-superseded] Penal Code section
12021. (Ibid.)
Pardons and Penal Code Section 1203.4 Motions
A pardon pursuant to Penal Code section 4852.17 restores a person’s right to
possess a firearm unless the person was convicted of a “felony involving the use of
a dangerous weapon.” (Pen. Code, § 4852.17.) The granting of a Penal Code
section 1203.4 motion, however, does not restore the person’s right to possess any
type of firearm. (Pen. Code, § 1203.4(a); People v. Frawley (2000) 82 Cal.App.4th
784, 796 [98 Cal.Rptr.2d 555].)
Submitting False Application for Firearm
A defendant who submitted a false application to purchase a firearm may not be
prosecuted for “attempted possession of a firearm by a felon.” (People v. Duran
(2004) 124 Cal.App.4th 666, 673 [21 Cal.Rptr.3d 495].) “Instead, the felon may
only be prosecuted pursuant to the special statute, [now-repealed Penal Code
section] 12076, which expressly proscribes such false application.” (Ibid.) [see now
Pen. Code, § 28215].
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