California Criminal Jury Instructions (CALCRIM) (2017)

2540. Carrying Firearm: Specified Convictions

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(iii) Sentencing Factors
2540.Carrying Firearm: Specified Convictions (Pen. Code,
§§ 25400(a), 25850(c))
If you find the defendant guilty of unlawfully (carrying a concealed
firearm (on (his/her) person/within a vehicle)[,]/ causing a firearm to be
carried concealed within a vehicle[,]/ [or] carrying a loaded firearm)
[under Count[s] ], you must then decide whether the People have
proved the additional allegation that (he/she) was previously convicted
of (a felony/the crimes of <insert one or more weapons
offenses punishable as a felony, crimes against the person or property, or
narcotics and dangerous drug violations>). It has already been
determined that the defendant is the person named in exhibits
<insert numbers or descriptions of exhibits>. You must
decide whether the evidence proves that the defendant was convicted of
the alleged crime[s].
The People allege that the defendant has been convicted of:
[1.] A violation of <insert code section alleged>, on
<insert date of conviction>, in the
<insert name of court>, in Case Number <insert docket or
case number>(;/.)
[AND <Repeat for each prior conviction alleged>.]
[A conviction of <insert name of offense from other state or
federal offense> is the same as a conviction for a felony.]
[Consider the evidence presented on this allegation only when deciding
whether the defendant was previously convicted of the crime[s] alleged
[or for the limited purpose of <insert other permitted
purpose, e.g., assessing credibility of the defendant>]. Do not consider this
evidence for any other purpose.]
[You must consider each alleged conviction separately.] The People have
the burden of proving this allegation beyond a reasonable doubt. If the
People have not met this burden [for any alleged conviction], you must
find that the alleged conviction has not been proved.
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 sentencing factor. (People v. Hall (1998) 67 Cal.App.4th 128, 135].)
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Give this instruction if the defendant is charged under Penal Code section
25400(c)(1), (5), 25850(c)(1), (5), unless the court has granted a bifurcated trial on
the prior conviction or the defendant stipulates to the prior conviction. (People v.
Hall, supra, 67 Cal.App.4th at p. 135.) This instruction must be given with the
appropriate instruction defining the elements of carrying a concealed firearm,
CALCRIM No. 2520, 2521, or 2522, or carrying a loaded firearm, CALCRIM No.
2530. 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 court grants bifurcation, do not give this instruction. Give CALCRIM No.
3101, Prior Conviction: Bifurcated Trial.
If the defendant does stipulate to the prior conviction, this instruction should not be
given and the prior conviction should not be disclosed to the jury unless the court
admits it as otherwise relevant. (People v. Hall, supra, 67 Cal.App.4th at p. 135.)
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “Consider the evidence presented . . . .” (People v.
Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) There
is no sua sponte duty to give the limiting instruction, and the defense may prefer
that no limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th
1137, 1139 [2 Cal.Rptr.3d 380].)
AUTHORITY
• Factors in Pen. Code, §§ 25400(c), 25850(c) Sentencing Factors, Not
Elements. People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d
690].
• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 154, 185.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][d] (Matthew Bender).
WEAPONS CALCRIM No. 2540
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