Criminal Law 2513. Possession of Firearm by Person Addicted to a Narcotic Drug

2513. Possession of Firearm by Person Addicted to a Narcotic Drug

The defendant is charged [in Count ______] with unlawfully possessing a firearm.

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. At the time the defendant (owned/purchased/received/ possessed) the firearm, (he/she) was addicted to the use of a narcotic drug. <insert narcotic drug alleged> is a narcotic drug.

A person is addicted to the use of a narcotic drug if:

1. The person has become emotionally dependent on the drug in the sense that he or she experiences a compulsive need to continue its use;

2. The person has developed a tolerance to the drug's effects and therefore requires larger and more potent doses;

AND

3. The person has become physically dependent, suffering withdrawal symptoms if he or she is deprived of the drug.

[A firearm is any device designed to be used as a weapon, from which a projectile is expelled through a barrel by the force of an explosion or other form of combustion.]

[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 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 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, the defendant gave prior notice to the law enforcement agency that (he/she) would be delivering a firearm to the agency for disposal.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

The court has a sua sponte duty to instruct on the union of general criminal intent and action, CALCRIM No. 251, Union of Act and Intent— General Intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 924 [49 Cal.Rptr.2d 86].) "Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. . . . [A] felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent." (Id. at p. 922.) The defendant is also entitled to a pinpoint instruction on unintentional possession if there is sufficient evidence to support the defense. (Id. at pp. 924-925.)

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.

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.

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 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 26, 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 12021(h) 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, § 12021(a); People v. Snyder (1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].

Narcotic Addict. People v. O'Neil (1965) 62 Cal.2d 748, 754 [44 Cal.Rptr. 320, 401 P.2d 928].

Defense of Justifiable Possession. Pen. Code, § 12021(h).

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].

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][d] (Matthew Bender).

(New January 2006)