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].)
“[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possession applies to a charge of violating now-repealed Penal Code section 12021.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.
• 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
CALCRIM No. 2510 WEAPONS