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
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.
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