2544. Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness
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 defendant was prohibited by law from possessing a firearm.
To prove this allegation, the People must prove that:
<Alternative 1A—prohibited due to mental illness or SVP status>
[The defendant <insert description from Welf. & Inst. Code, § 8100 or 8103>.]
<Alternatives 1B & 2B—prohibited by court order. Give both elements 1B and 2B in cases involving restraining orders. For probation orders, give only 1B.>
[1. A court had ordered that the defendant not (own/ purchase/ receive/ [or] possess) a firearm(;/.)]
2. The defendant knew about the court's order.]
<Alternatives 1C & 2C—prohibited due to conviction. Give both elements 1C and 2C in cases involving misdemeanor convictions or juvenile findings. For all other cases involving prior convictions, give 1C only.>
[1. The defendant had previously been convicted of (a felony/ two offenses of brandishing a firearm/the crime of <insert misdemeanor offense from Pen. Code, § 12021(c) or 12001.6(a), (b), or (d), or a juvenile finding from Pen. Code, § 12021(e)>)(;/.)]
2. (The previous conviction was within 10 years of the date the defendant (carried the firearm/caused the firearm to be carried concealed in a vehicle)./The defendant was less than 30 years old at the time (he/she) (carried the firearm/ caused the firearm to be carried concealed in a vehicle).)]
[A juvenile court finding is the same as a conviction.]
[A conviction of <insert name of offense from other state or federal offense> is the same as a conviction for a felony.]
[You may consider evidence, if any, that (the defendant was previously convicted of a crime/a court ordered the defendant not to (own[,]/ purchase[,]/ receive[,]/ [or] possess) a firearm) only in deciding whether the People have proved this allegation [or for the limited purpose of <insert other permitted purpose, e.g., assessing defendant's credibility>]. Do not consider such evidence for any other purpose.]
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)(4) or 12031(a)(2)(D) and the defendant does not stipulate that he or she is prohibited from possessing a firearm. (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. 2521, 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 he or she is prohibited from possessing a firearm, this instruction should not be given and that information should not be disclosed to the jury unless the court admits the information as otherwise relevant. (See People v. Hall, supra, 67 Cal.App.4th at p. 135.)
When giving alternative 1B, only give element 2B if the prosecution alleges that the defendant was prohibited from possessing a firearm under Penal Code section 12021(g).
When giving alternative 1C, only give element 2C if the prosecution alleges that the defendant was prohibited from possessing a firearm under Penal Code section 12021(c), possession within ten years of a specified misdemeanor conviction, or Penal Code section 12021(e), possession by someone under 30 years old with a specified juvenile finding.
On request, the court should give the limiting instruction regarding the evidence of the prior conviction that begins, "You may consider . . . ." (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].)
Factors. Pen. Code, §§ 12025(b)(4), 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].
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].
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).
See Related Issues section of Bench Notes for CALCRIM No. 2510, Possession of Firearm by Person Prohibited Due to Conviction—No Stipulation to Conviction.
(New January 2006)