Criminal Law

2540. Carrying Firearm: Specified Convictions

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.

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.4th128, 135 [78 Cal.Rptr.2d 809].)

Give this instruction if the defendant is charged under Penal Code section 12025(b)(1), 12025(b)(5), 12031(a)(2)(A), or 12031(a)(2)(E), 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.4th1137, 1139 [2 Cal.Rptr.3d 380].)


Factors. Pen. Code, §§ 12025(b)(1), 12025(b)(5), 12031(a)(2)(A), 12031(a)(2)(E).

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].

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).

(New January 2006)