2541. Carrying Firearm: Stolen Firearm
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 the firearm was stolen.
To prove this allegation, the People must prove that:
1. The firearm the defendant (carried/ [or] caused to be carried concealed in a vehicle) was stolen;
2. The defendant knew or had reasonable cause to believe the firearm was stolen.
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.
The court has a sua sponte duty to give this instruction defining the elements of the sentencing factor. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
Give this instruction if the defendant is charged under Penal Code section 12025(b)(2) or 12031(a)(2)(B) and the defendant does not stipulate to the firearm being stolen. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [78 Cal.Rptr.2d 809].) 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 defendant does stipulate that the firearm was stolen, this instruction should not be given and that information should not be disclosed to the jury. (See People v. Hall, supra, 67 Cal.App.4th at p. 135.)
Factors. Pen. Code, §§ 12025(b)(2), 12031(a)(2)(B).
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].
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[d] (Matthew Bender).
(New January 2006)