CALCRIM No. 2513. Possession of Firearm by Person Addicted to a Narcotic Drug (Pen. Code, § 29800)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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2513.Possession of Firearm by Person Addicted to a Narcotic
Drug (Pen. Code, § 29800)
The defendant is charged [in Count ] with unlawfully possessing a
firearm [in violation of Penal Code section 29800].
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
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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.]]
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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 February 2012
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 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
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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, § 29800; 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, § 29850.
• 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 (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).
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