CALCRIM No. 2560. Possession, etc., of Assault Weapon or .50 BMG Rifle (Pen. Code, §§ 30605, 30600)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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D. ASSAULT WEAPONS
2560.Possession, etc., of Assault Weapon or .50 BMG Rifle (Pen.
Code, §§ 30605, 30600)
The defendant is charged [in Count ] with unlawfully (possessing/
manufacturing/causing to be manufactured/distributing/transporting/
importing/keeping for sale/offering or exposing for sale/giving/lending)
(an assault weapon, specifically [a/an] <insert type of
weapon from Pen. Code, § 30510 or description from § 30515>/a .50 BMG
rifle) [in violation of Penal Code section <insert relevant
Penal Code section>].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (possessed/manufactured/caused to be
manufactured/distributed/transported/imported/kept for
sale/offered or exposed for sale/gave/lent) (an assault weapon,
specifically [a/an] <insert type of weapon from Pen.
Code, § 30510 or description from § 30515>/a .50 BMG rifle);
2. The defendant knew that (he/she) (possessed/manufactured/caused
to be manufactured/distributed/transported/imported/kept for
sale/offered or exposed for sale/gave/lent)it;
AND
3. The defendant knew or reasonably should have known that it had
characteristics that made it (an assault weapon/a .50 BMG rifle).
[(A/An) <insert type of weapon from Pen. Code, § 30510 or
description from § 30515> is an assault weapon.]
[A .50 BMG rifle is a center fire rifle that can fire a .50 BMG cartridge
[and that is not an assault weapon or a machine gun]. A .50 BMG
cartridge is a cartridge that is designed and intended to be fired from a
center fire rifle and that has all three of the following characteristics:
1. The overall length is 5.54 inches from the base of the cartridge to
the tip of the bullet;
2. The bullet diameter for the cartridge is from .510 to, and
including, .511 inch;
AND
3. The case base diameter for the cartridge is from .800 inch to, and
including, .804 inch.]
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[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to control
it), either personally or through another person.]
[The People allege that the defendant (possessed/manufactured/caused to
be manufactured/distributed/transported/imported/kept for sale/offered
or exposed for sale/gave/lent) the following weapons:
<insert description of each weapon when multiple items alleged>. You may
not find the defendant guilty unless all of you agree that the People have
proved that the defendant (possessed/manufactured/caused to be
manufactured/distributed/transported/imported/kept for sale/offered or
exposed for sale/gave/lent) at least one of these weapons, and you all
agree on which weapon (he/she) (possessed/manufactured/caused to be
manufactured/distributed/transported/imported/kept for sale/offered or
exposed for sale/gave/lent).]
<Defense: Permit, Registration, or Exemption From Statute>
[The defendant did not unlawfully (possess/manufacture/cause to be
manufactured/distribute/transport/import/keep for sale/offer or expose
for sale/give/lend) (an assault weapon/a .50 BMG rifle) if (he/she) (had
registered the weapon/had a valid permit to (possess/manufacture/sell)
the weapon/ <insert exemption from Pen. Code, §§ 30625,
30630(a)-(c), 30635, 30640, 30645, 30655(a), (b), 30660(a)-(c), 30665,
30670(a), (b), 30675(a)-(c)>). The People have the burden of proving
beyond a reasonable doubt that the defendant did not (register the
weapon/have a valid permit to (possess/manufacture/sell) the weapon/
<insert exemption from Pen. Code, §§ 30625, 30630(a)-(c),
30635, 30640, 30645, 30655(a), (b), 30660(a)-(c), 30665, 30670(a), (b),
30675(a)-(c)>). If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006; Revised August 2006, February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the prosecution alleges under a single count that the defendant possessed multiple
weapons and the possession was “fragmented as to time . . . [or] space,” the court
has a sua sponte duty to instruct on unanimity. (See People v. Wolfe (2003) 114
Cal.App.4th 177, 184-185 [7 Cal.Rptr.3d 483].) Give the bracketed paragraph that
begins, “The People allege that the defendant possessed the following weapons,”
inserting the items alleged. But see Pen. Code, § 30600(c), which states that except
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in case of a first violation involving not more than two firearms, if more than one
assault weapon or .50 BMG rifle is involved in any violation of this section, there
shall be a distinct and separate offense for each.
The jury must decide if the weapon possessed was an assault weapon or a .50 BMG
rifle. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d
869].) When instructing on the definition of assault weapon or .50 BMG rifle, the
court should not state that the weapon possessed by the defendant was an assault
weapon or was a .50 BMG rifle. In the case of an assault weapon, where indicated
in the instruction, the court may insert a weapon listed in Penal Code section 30510
or a description of a weapon from section 30515. In the case of a .50 BMG rifle,
give the bracketed definition of that term.
If the defendant is charged with both a separate count and an enhancement for
violating Penal Code section 30615 while committing another crime, give this
instruction and CALCRIM No. 2561, Possession, etc., of Assault or .50 BMG Rifle
Weapon While Committing Other Offense: Pen. Code, § 30615 - Enhancement of
Punishment for Another Crime (Pen. Code, § 30615; People v. Jimenez (1992) 8
Cal.App.4th 391, 398 [10 Cal.Rptr.2d 281].) If the defendant is only charged with
an enhancement under Penal Code section 30615 and not with a separate count for
violating Penal Code section(s) 30605 or 30610, give only CALCRIM No. 2562,
Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense: Pen. Code, § 30615 - Charged Only as Enhancement.
Defenses - Instructional Duty
Registration and permitting procedures are contained in Penal Code sections 30900
to 31005. Exemptions to the statute are stated in Penal Code section 30625 et seq.
The existence of a statutory exemption is an affirmative defense. (People v. Jimenez,
supra, 8 Cal.App.4th at pp. 395-397.) If the defense presents sufficient evidence to
raise a reasonable doubt about the existence of a legal basis for his or her actions,
the court has a sua sponte duty to give the bracketed instruction on the defense.
(See People v. Mower (2002) 28 Cal.4th 457, 478-481 [122 Cal.Rptr.2d 326, 49
P.3d 1067] [discussing affirmative defenses generally and the burden of proof].)
Insert the appropriate language in the bracketed paragraph that begins, “The
defendant did not unlawfully . . . .”
AUTHORITY
• Elements. Pen. Code, § 30605, 30600.
• Assault Weapon Defined. Pen. Code §§ 30510, 30515; see also Harrott v.
County of Kings (2001) 25 Cal.4th 1138, 1142-1145 [108 Cal.Rptr.2d 445, 25
P.3d 649] [discussing statutory definition of assault weapon, amendments to
statute and petition procedure by which the Attorney General may have weapon
listed].
• .50 BMG Rifle Defined. Pen. Code, § 30530.
• Permits and Registration. Pen. Code, §§ 30900-31005.
• Exemptions. Pen. Code, § 30625 et seq.
WEAPONS CALCRIM No. 2560
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• Knowledge Required. In re Jorge M. (2000) 23 Cal.4th 866, 887 [98
Cal.Rptr.2d 466, 4 P.3d 297].
• Permits, Registration, and Exemptions Are Affirmative Defenses. People v.
Jimenez (1992) 8 Cal.App.4th 391, 395-397 [10 Cal.Rptr.2d 281].
• Constructive vs. Actual Possession. People v. Azevedo (1984) 161 Cal.App.3d
235, 242-243 [207 Cal.Rptr. 270], questioned on other grounds in In re Jorge M.
(2000) 23 Cal.4th 866, 876, fn. 6 [98 Cal.Rptr.2d 466, 4 P.3d 297].
• Statute Constitutional. Silveira v. Lockyer (2002) 312 F.3d 1052, 1056; Kasler
v. Lockyer (2000) 23 Cal.4th 472, 478 [97 Cal.Rptr.2d 334, 2 P.3d 581].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 216-219, 220-222.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][b], [d] (Matthew Bender).
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