California Criminal Jury Instructions (CALCRIM) (2017)

2543. Carrying Firearm: Not in Lawful Possession

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2543.Carrying Firearm: Not in Lawful Possession (Pen. Code,
§§ 25400(c)(4), 25850(c)(4))
The People have also alleged that the defendant did not lawfully possess
the firearm at issue in this case. 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 this additional allegation.
To prove this allegation, the People must prove that the defendant did
not lawfully possess the firearm.
A person lawfully possesses a firearm if he or she either lawfully owns
the firearm or has the permission of (the lawful owner/ [or] a person
who otherwise has apparent authority over the firearm). A person does
not have lawful possession of a firearm if he or she takes it without the
permission of the lawful owner or custodian of the firearm.
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.
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. (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
25400(c)(4) or 25850(c)(4) and the defendant does not stipulate to unlawful
possession. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].)
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 to unlawful possession, 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.)
AUTHORITY
• Factors. Pen. Code, §§ 25400(c)(4), 25850(c)(4).
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• Factors in Now Repealed Pen. Code, § 12025(b) Sentencing Factors, Not
Elements. People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d
690].
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).
CALCRIM No. 2543 WEAPONS
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