California Criminal Jury Instructions (CALCRIM) (2017)

2544. Carrying Firearm: Possession of Firearm Prohibited Due to Conviction, Court Order, or Mental Illness

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2544.Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness (Pen. Code,
§§ 25400(c)(4), 25850(c)(4))
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/possess) a firearm(;/.)]
[AND
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, § 29805 or 23515, or
a juvenile finding from Pen. Code, § 29820(a)(2)>)(;/.)]
[AND
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.]
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[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.
New January 2006; Revised June 2007, 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 that he or she is
prohibited from possessing a firearm. (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.
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
29825(a), (b).
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
29805, possession within ten years of a specified misdemeanor conviction, or Penal
Code section 29820(a), (b), 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
CALCRIM No. 2544 WEAPONS
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limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139
[2 Cal.Rptr.3d 380].)
AUTHORITY
• Factors. Pen. Code, §§ 25400(c)(4), 25850(c)(4). Sentencing Factors, Not
Elements People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• 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).
RELATED ISSUES
See Related Issues section of Bench Notes for CALCRIM No. 2510, Possession of
Firearm by Person Prohibited Due to Conviction—No Stipulation to Conviction.
WEAPONS CALCRIM No. 2544
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