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.
“[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possession applies to a charge of violating now-repealed Penal Code section 12021.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.
CALCRIM No. 2512 WEAPONS