California Criminal Jury Instructions (CALCRIM) (2017)

2512. Possession of Firearm by Person Prohibited by Court Order

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2512.Possession of Firearm by Person Prohibited by Court
Order (Pen. Code, §§ 29815, 29825)
The defendant is charged [in Count ] with unlawfully possessing
a firearm [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 (owned/purchased/received/possessed) a firearm;
2. The defendant knew that (he/she) (owned/purchased/received/
possessed) the firearm;
[AND]
3. A court had ordered that the defendant not (own/purchase/
receive/possess) a firearm(;/.)
<Give element 4 only if the defendant is charged under Pen. Code,
§ 29825.>
[AND
4. The defendant knew of the court’s order.]
[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.]
[A 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 defendant and the People have stipulated, or agreed, that a court
ordered the defendant not to (own/purchase/receive/possess) a firearm.
This stipulation means that you must accept this fact as proved.]
<Alternative A—limiting instruction when stipulation to order>
[Do not consider this fact for any other purpose [except for the limited
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purpose of <insert other permitted purpose, e.g., determining
the defendant’s credibility>]. Do not speculate about why the court’s
order was made.]
<Alternative B—limiting instruction when no stipulation to order>
[You may consider evidence, if any, that a court ordered the defendant
not to (own/purchase/receive/possess) a firearm 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. If
the defendant has not met this burden, (he/she) has not proved this
defense.]
<Defense: Justifiable Possession>
[If you conclude that the defendant possessed a firearm, that possession
was not unlawful if the defendant can prove that (he/she) was justified
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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) had given prior notice to the
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
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 is charged under Penal Code
section 29815, possession by someone prohibited as a condition of probation
following conviction for a crime not listed in other provisions of Penal Code
section 29800, or Penal Code section 29825, possession by someone prohibited by
a temporary restraining order or other protective order.
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
beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
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Give element 4 only if the defendant is charged under Penal Code section 29825.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
If the defendant has not stipulated to the probation order, do not give the bracketed
paragraph that begins, “The defendant and the People have stipulated . . . .”
If the defendant does stipulate to the probation order, the court must give the
bracketed paragraph that begins, “The defendant and the People have stipulated
. . . .” The court must also sanitize all references to the probation order to prevent
disclosure of the nature of the conviction to the jury. (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 agrees, the
court must not read the portion of the information describing the nature of the
conviction. Likewise, the court must ensure that the verdict forms do not reveal the
nature of the conviction.
On request, the court should give the limiting instruction regarding the evidence of
the probation condition. (People v. Valentine, supra, 42 Cal.3d at 182, fn. 7.) 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].) If the defendant does not stipulate to the probation
condition, give alternative A. If the defendant does stipulate, give alternative B.
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.
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AUTHORITY
• Elements. Pen. Code, §§ 29815 & 29825; People v. Snyder (1982) 32 Cal.3d
590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
• Defense of Justifiable Possession. Pen. Code, § 29850.
• 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].
• 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 (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 175.
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] (Matthew Bender).
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