2530. Carrying Loaded Firearm
The defendant is charged [in Count ______] with unlawfully carrying a loaded firearm (on (his/her) person/in a vehicle).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant carried a loaded firearm (on (his/her) person/in a vehicle);
2. The defendant knew that (he/she) was carrying a firearm;
3. At that time, the defendant was in a public place or on a public street in (an incorporated city/in an unincorporated area where it was unlawful to discharge a firearm).
[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 any explosion or other form of combustion. [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 is defined in another instruction.]
As used here, a firearm is loaded if there is an unexpended cartridge or shell in the firing chamber or in either a magazine or clip attached to the firearm. An unexpended cartridge or shell consists of a case that holds a charge of powder and a bullet or shot. [A muzzle-loader firearm is loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.]
[A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.]
[ <insert location> is (an incorporated city/in an unincorporated area where it is unlawful to discharge a firearm).]
<Defense: Statutory Exemption>
[The defendant did not unlawfully carry a loaded firearm if <insert defense from Pen. Code, § 12031(b), (h)-(l)>. The People have the burden of proving beyond a reasonable doubt that the defendant unlawfully carried a loaded firearm. If the People have not met this burden, you must find the defendant not guilty of this crime.]
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 12031(a)(2), the court must also give the appropriate instruction from CALCRIM Nos. 2540-2546. (See People v. Hall (1998) 67 Cal.App.4th 128, 135 [78 Cal.Rptr.2d 809].)
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.
Exemptions and a justification for carrying a loaded firearm are stated in Penal Code section 12031(b) and (h) to (l). If the defense presents sufficient evidence 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 . . . ."
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.
Due to Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Loaded Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and Weapon Loaded.
Elements. Pen. Code, § 12031(a).
Firearm Defined. Pen. Code, § 12001.
Knowledge of Presence of Weapon Required. See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. Dillard (1984) 154 Cal.App.3d 261, 267 [201 Cal.Rptr. 136].
Knowledge Firearm Loaded Not Required. People v. Dillard (1984) 154 Cal.App.3d 261, 266 [201 Cal.Rptr. 136]; People v. Harrison (1969) 1 Cal.App.3d 115, 120 [81 Cal.Rptr. 396].
Factors in Pen. Code, § 12025(b) Sentencing Factors, Not Elements. People v. Hall (1998) 67 Cal.App.4th 128, 135 [78 Cal.Rptr.2d 809].
Justifications and Exemptions. Pen. Code, § 12031(b), (h)-(l).
Need Not Be Operable. People v. Taylor (1984) 151 Cal.App.3d 432, 437 [199 Cal.Rptr. 6].
"Loaded" Firearm. People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53 Cal.Rptr.2d 99].
Must Be in Incorporated City or Prohibited Area of Unincorporated Territory. People v. Knight (2004) 121 Cal.App.4th 1568, 1575 [18 Cal.Rptr.3d 384].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 185-186.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[d], [f] (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, § 12031(a)(2)(G).) 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.
"Under the commonly understood meaning of the term 'loaded,' a firearm is 'loaded' when a shell or cartridge has been placed into a position from which it can be fired; the shotgun is not 'loaded' if the shell or cartridge is stored elsewhere and not yet placed in a firing position." (People v. Clark (1996) 45 Cal.App.4th 1147, 1153 [53 Cal.Rptr.2d 99].)
Location—Court May Take Judicial Notice
"The location of local streets within city boundaries is properly a matter of judicial notice [citation omitted], as is the fact that a particular jurisdiction is an incorporated city." (People v. Vega (1971) 18 Cal.App.3d 954, 958 [96 Cal.Rptr. 391] [footnote and citation omitted].)
"[A] Taser is a firearm and can be a loaded firearm within section 12031." (People v. Heffner (1977) 70 Cal.App.3d 643, 652 [139 Cal.Rptr. 45].)
(New January 2006)