California Criminal Jury Instructions (CALCRIM) (2017)

2561. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense: Pen. Code, § 12280 Charged as Separate Count and as Enhancement

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2561.Possession, etc., of Assault Weapon or .50 BMG Rifle
While Committing Other Offense—Charged as Separate Count
and as Enhancement (Pen. Code, § 30615)
If you find the defendant guilty of both (possessing/manufacturing/
causing to be manufactured/distributing/transporting/importing/keeping
for sale/offering or exposing for sale/giving/lending) (an assault weapon/
a .50 BMG rifle) under Count and the crime of
<insert other offense alleged> under Count , you must then decide
whether the People have proved the additional allegation that (he/she)
committed the first crime while committing the second one.
To prove this allegation, the People must prove that the defendant
(possessed/ manufactured/ caused to be manufactured/distributed/
transported/imported/kept for sale/offered or exposed for sale/gave/lent)
(an assault weapon/a .50 BMG rifle) while committing the crime of
<insert other offense alleged>.
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 enhancement. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490
[120 S.Ct. 2348, 147 L.Ed.2d 435]; People v. Jimenez (1992) 8 Cal.App.4th 391,
398 [10 Cal.Rptr.2d 281] [enhancement under Pen. Code, § 30600(b) must be
pleaded and proved].)
Give this instruction if the defendant is charged with a separate count for violating
Penal Code section 30615 and an enhancement for violating Penal Code section
30600 while committing another crime. (Pen. Code, § 30615; People v. Jimenez,
supra, 8 Cal.App.4th at p. 398.) This instruction must be given with CALCRIM
No. 2560, Possession, etc., of Assault Weapon or .50 BMG Rifle, and the
appropriate instruction defining the elements of the other offense charged.
The court must provide the jury with a verdict form on which the jury will indicate
if the sentencing enhancement has been proved.
If the defendant is not charged with a separate count for violating Penal Code
section 30600 but is charged only with the enhancement, do not give this
instruction. Give CALCRIM No. 2562, Possession, etc., of Assault Weapon or .50
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BMG Rifle While Committing Other Offense: Pen. Code, § 30600—Charged Only
as Enhancement.
AUTHORITY
• Enhancement. Pen. Code, § 30615; People v. Jimenez (1992) 8 Cal.App.4th
391, 398 [10 Cal.Rptr.2d 281].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 165, 166.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][b] (Matthew Bender).
CALCRIM No. 2561 WEAPONS
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