California Criminal Jury Instructions (CALCRIM) (2017)

2521. Carrying Concealed Firearm Within Vehicle (Pen. Code, § 25400(a)(1))

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2521.Carrying Concealed Firearm Within Vehicle (Pen. Code,
§ 25400(a)(1))
The defendant is charged [in Count ] with unlawfully carrying a
concealed firearm within a vehicle [in violation of Penal Code section
25400].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant carried within a vehicle a firearm capable of
being concealed on the person;
2. The defendant knew the firearm was in the vehicle;
3. The firearm was substantially concealed within the vehicle;
AND
4. The vehicle was under the defendant’s control or direction.
[A firearm capable of being concealed on the person 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 and that has a barrel less than 16 inches in length. [A
firearm capable of being concealed on the person also includes any device
that has a barrel 16 inches or more in length that is designed to be
interchanged with a barrel less than 16 inches in length.] [A firearm also
includes any rocket, rocket-propelled projectile launcher, or similar
device containing any explosive or incendiary material, whether or not
the device is designed for emergency or distress signaling purposes.]]
[The term firearm capable of being concealed on the person 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.]
[Firearms carried openly in belt holsters are not concealed.]
<Defense: Statutory Exemption>
[The defendant did not unlawfully carry a concealed firearm with in a
vehicle if <insert defense from Pen. Code, § 25600, 25605,
25525, 25510, or 25450>. The People have the burden of proving beyond
a reasonable doubt that the defendant unlawfully carried a concealed
firearm within a vehicle. If the People have not met this burden, you
must find the defendant not guilty of this crime.]
New January 2006; Revised February 2012
386
0050
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime. If the defendant is charged with any of the sentencing factors in Penal
Code section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” 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.
Penal Code section 25400(a) prohibits carrying a concealed “pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
16530 provides a single definition for this class of weapons. Thus, the committee
has chosen to use solely the all-inclusive phrase “firearm capable of being
concealed on the person.”
Defenses—Instructional Duty
Exemptions and a justification for carrying a concealed firearm are stated in Penal
Code sections 25600, 25605, 25525, 25510, and 25450. If sufficient evidence has
been presented to raise a reasonable doubt about the existence of a legal basis for
the defendant’s actions, the court has a sua sponte duty to give the bracketed
instruction on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
AUTHORITY
• Elements. Pen. Code, § 25400(a)(1)
Firearm Defined. Pen. Code, § 16520.
• Knowledge Required. People v. Jurado (1972) 25 Cal.App.3d 1027,
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1030–1031 [102 Cal.Rptr. 498]; People v. Rubalcava (2000) 23 Cal.4th 322,
331–332 [96 Cal.Rptr.2d 735, 1 P.3d 52].
• Concealment Required. People v. Nelson (1960) 185 Cal.App.2d 578, 580–581
[8 Cal.Rptr. 288].
• Factors in Pen. Code, § 25400(c) Sentencing Factors, Not Elements. People v.
Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Justifications and Exemptions. Pen. Code, §§ 25600, 25605, 25525, 25510,
25450.
• Need Not Be Operable. People v. Marroquin (1989) 210 Cal.App.3d 77, 82
[258 Cal.Rptr. 290].
• Substantial Concealment. People v. Wharton (1992) 5 Cal.App.4th 72, 75 [6
Cal.Rptr.2d 673] [interpreting now-repealed Pen. Code, § 12020(a)(4)]; People
v. Fuentes (1976) 64 Cal.App.3d 953, 955 [134 Cal.Rptr. 885] [same].
• Statute Is Not Unconstitutionally Vague. People v. Hodges (1999) 70
Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 154–159.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][d] (Matthew Bender).
LESSER INCLUDED OFFENSES
If the defendant is charged with one of the sentencing factors that makes this
offense a felony, then the misdemeanor offense is a lesser included offense. The
statute defines as a misdemeanor all violations of the statute not covered by the
specified sentencing factors. (Pen. Code, § 25400(c)(7).) The court must provide the
jury with a verdict form on which the jury will indicate if the sentencing factor has
been proved. If the jury finds that the sentencing factor has not been proved, then
the offense should be set at a misdemeanor.
RELATED ISSUES
Gun in Unlocked Carrying Case Is Concealed
“If a firearm is transported in a vehicle in such a manner as to be invisible unless
its carrying case is opened, it is concealed in the ordinary and usual meaning of the
term.” (People v. Hodges (1999) 70 Cal.App.4th 1348, 1355 [83 Cal.Rptr.2d 619].)
Thus, carrying a firearm in an unlocked case in a vehicle violates Penal Code
section 25400(a)(1). (Ibid.) However, Penal Code section 25525 makes it lawful to
transport a firearm in a vehicle if it is in a locked case.
Not Necessary for Defendant to Possess or Control the Firearm
“The statute does not require that the defendant have the exclusive possession and
control of the firearm.” (People v. Davis (1958) 157 Cal.App.2d 33, 36 [320 P.2d
88].) The court in People v. Davis, supra, upheld the conviction where the
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defendant owned and controlled the vehicle and knew of the presence of the
firearm below the seat, even though the weapon was placed there by someone else
and belonged to someone else. (Ibid.)
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