Criminal Law

2590. Armed Criminal Action

The defendant is charged [in Count ______] with carrying a loaded firearm with intent to commit a felony.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant carried a firearm;

2. The defendant knew that (he/she) was carrying the firearm;

3. When the defendant carried the firearm, (he/she) intended to commit <insert felony alleged>;


4. The firearm was loaded(;/.)

<See Commentary regarding element 5.>


5. The defendant knew that the firearm was loaded.]

[A firearm is any device designed to be used as a weapon, from which a projectile is expelled or expelled through a barrel by the force of an explosion or other form of combustion.]

[The term firearm is defined in another instruction.]

As used here, a firearm is loaded if the firearm and ammunition capable of being discharged from the firearm are in the immediate possession of the same person.

<See Commentary regarding this paragraph.>

[A firearm does not need to be in working order if it was designed to shoot and appears capable of shooting.]

<See Commentary regarding this paragraph.>

[A person carries a firearm when he or she has the firearm on his or her person or has it available for use in either offense or defense.]

To decide whether the defendant intended to commit <insert felony alleged>, please refer to the separate instructions that I (will give/have given) you on that crime.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

The court should give the bracketed definition of "firearm" unless the court has already given the definition in other instructions. In such cases, the court may give the bracketed sentence stating that the term is defined elsewhere.


Elements. Pen. Code, § 12023.

Firearm Defined. Pen. Code, § 12001(b).

Loaded Defined. Pen. Code, § 12001(j).

Knowledge of Presence of Weapon Required. See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96 Cal.Rptr.2d 735, 1 P.3d 52].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 194.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[1][d] (Matthew Bender).


There are no published cases on this statute. Thus, it is unclear if the firearm must be operable or if the defendant must know the firearm is "loaded." It is also unclear if the statute requires that the defendant carry the firearm on his or her person or if it is sufficient if the defendant "has the firearm available." (See People v. Wandick (1991) 227 Cal.App.3d 918, 928 [278 Cal.Rptr. 274] [discussing definition of "armed" in Pen. Code, § 12022(a)].) The instruction has been drafted to provide the court options on these issues. If these issues are present in the case, the court must decide whether to give bracketed element 5 and which of the bracketed paragraphs and are appropriate.

(New January 2006)