California Criminal Jury Instructions (CALCRIM) (2017)

2562. Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other Offense: Pen. Code, § 12280 Charged Only as Enhancement

Download PDF
2562.Possession, etc., of Assault Weapon or .50 BMG Rifle
While Committing Other Offense—Charged Only as Enhancement
(Pen. Code, § 30615)
If you find the defendant guilty of 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 that offense while 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).
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;
3. The defendant knew or reasonably should have known that it
had characteristics that made it (an assault weapon/a .50 BMG
rifle);
AND
4. The defendant (possessed/manufactured/caused to be
manufactured/distributed/transported/imported/kept for sale/
offered or exposed for sale/gave/lent) the weapon while
committing the crime of <insert other offense
alleged>.
[(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:
423
0087
1. The overall length is 5.54 inches from the base 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.]
[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 this additional allegation true 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).]
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.
<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,
§ 12280(e)–(s)>). 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 allegation.]
New January 2006; Revised August 2006, February 2012
CALCRIM No. 2562 WEAPONS
424
0088
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] [any fact, other than prior conviction, that
increases the maximum penalty for a crime must be charged, submitted to a jury,
and proved beyond a reasonable doubt]; 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 an enhancement for violating
Penal Code section 12280 while committing another crime but is not charged with
a separate count for violating Penal Code section 30600. (Pen. Code, § 30615;
People v. Jimenez, supra, 8 Cal.App.4th at p. 398.) The court must provide the jury
with a verdict form on which the jury will indicate if the sentencing enhancement
has or has not been proved.
If the defendant has been charged with a separate count for violating Penal Code
section 30600 and with the enhancement, do not give this instruction. Give
CALCRIM No. 2561, Possession, etc., of Assault Weapon or .50 BMG Rifle While
Committing Other Offense: Pen. Code, § 30615—Charged as Separate Count and
as Enhancement.
If the prosecution alleges under a single enhancement 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 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 .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.
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 the
WEAPONS CALCRIM No. 2562
425
0089
defendant’s 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
beginning, “The defendant did not unlawfully . . . .”
AUTHORITY
• Enhancement. Pen. Code, § 30615; People v. Jimenez (1992) 8 Cal.App.4th
391, 398 [10 Cal.Rptr.2d 281].
• 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.
• 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 (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).
2563–2569. Reserved for Future Use
CALCRIM No. 2562 WEAPONS
426
0090