Criminal Law

2543. Carrying Firearm: Not in Lawful Possession

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.

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 12025(b)(4) or 12031(a)(2)(D) and the defendant does not stipulate to unlawful possession. (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 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.)


Factors. Pen. Code, §§ 12025(b)(2), 12031(a)(2)(D).

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].

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)