2561. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense: Pen. Code, § 12280 Charged as Separate Count and as Enhancement
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.
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, § 12280 must be pleaded and proved].)
Give this instruction if the defendant is charged with a separate count for violating Penal Code section 12280 and an enhancement for violating Penal Code section 12280 while committing another crime. (Pen. Code, § 12280(d); 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 12280 but is charged only with the enhancement, do not give this instruction. Give CALCRIM No. 2562, Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense: Pen. Code, § 12280 Charged Only as Enhancement.
Enhancement. Pen. Code, § 12280(d); People v. Jimenez (1992) 8 Cal.App.4th 391, 398 [10 Cal.Rptr.2d 281].
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[b] (Matthew Bender).
(New January 2006)