California Criminal Jury Instructions (CALCRIM) (2017)

2590. Armed Criminal Action (Pen. Code, § 25800)

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F. OTHER WEAPONS OFFENSES
2590.Armed Criminal Action (Pen. Code, § 25800)
The defendant is charged [in Count ] with carrying a loaded
firearm with intent to commit a felony [in violation of Penal Code
section 25800].
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>;
[AND]
4. The firearm was loaded(;/.)
<See Commentary regarding element 5.>
[AND
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.
461
0125
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 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.
AUTHORITY
• Elements. Pen. Code, § 25800.
• Firearm Defined. Pen. Code, § 16520.
• Loaded Defined. Pen. Code, § 16840.
• 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).
COMMENTARY
There are no published cases on this statute. Thus, it is unclear whether the firearm
must be operable or whether the defendant must know the firearm is “loaded.” It is
also unclear whether the statute requires that the defendant carry the firearm on his
or her person or whether 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 meaning 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 are appropriate.
CALCRIM No. 2590 WEAPONS
462
0126