California Criminal Jury Instructions (CALCRIM) (2017)

2530. Carrying Loaded Firearm

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(ii) Loaded
2530.Carrying Loaded Firearm (Pen. Code, § 25850(a))
The defendant is charged [in Count ] with unlawfully carrying a
loaded firearm (on (his/her) person/in a vehicle) [in violation of Penal
Code section 25850(a)].
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;
AND
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, §§ 25900, 26000 et seq.>.
The People have the burden of proving beyond a reasonable doubt that
the defendant unlawfully carried a loaded firearm. If the People have
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not met this burden, you must find the defendant not guilty of this
crime.]
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. If the defendant is charged with any of the sentencing factors in Penal
Code section 25850, the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (See People v. Hall (1998) 67 Cal.App.4th 128, 135
[79 Cal.Rptr.2d 690].)
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
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
. . . .”
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, § 25850(a).
Firearm Defined. Pen. Code, § 16520.
• 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
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(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, § 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, § 25900, 26000 et seq.
• 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].
Secondary Sources
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[1][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, § 25850(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
Loaded Firearm
“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
CALCRIM No. 2530 WEAPONS
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incorporated city.” (People v. Vega (1971) 18 Cal.App.3d 954, 958 [96 Cal.Rptr.
391] [footnote and citation omitted].)
Taser
“[A] Taser is a firearm and can be a loaded firearm within [now-repealed] section
12031.” (People v. Heffner (1977) 70 Cal.App.3d 643, 652 [139 Cal.Rptr. 45].)
2531–2539. Reserved for Future Use
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