California Criminal Jury Instructions (CALCRIM) (2017)

2591. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Conviction or Mental

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2591.Possession of Ammunition by Person Prohibited From
Possessing Firearm Due to Conviction or Mental Illness (Pen.
Code, § 30305(a))
The defendant is charged [in Count ] with unlawfully possessing
ammunition [in violation of Penal Code section 30305(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (owned/possessed/had under (his/her) custody or
control) ammunition;
2. The defendant knew (he/she) (owned/possessed/had under (his/
her) custody or control) the ammunition;
[AND]
<Alternative 3A—prohibited due to mental illness or SVP status>
[3. The defendant <insert description from Welf. & Inst.
Code, § 8100 or 8103>.]
<Alternative 3B—prohibited due to conviction. Give both element 3B and
element 4 in cases involving misdemeanor convictions or juvenile
findings. For all other cases involving prior convictions, give 3B only.>
[3. The defendant had previously been convicted of (a felony/a
misdemeanor/two offenses of brandishing a firearm/the crime of
<insert misdemeanor offense from Pen. Code, § 29805
or 23515, or a juvenile finding from Pen. Code, § 29820>)(;/.)]
[AND
4. (The previous conviction was within 10 years of the date the
defendant possessed the ammunition./The defendant was less
than 30 years old at the time (he/she) possessed the
ammunition.)]
Ammunition means a bullet, cartridge, magazine, clip, speed loader,
autoloader, or projectile capable of being fired from a firearm with a
deadly consequence. Ammunition includes reloaded ammunition.
[A juvenile court finding is the same as a conviction.]
[A conviction of <insert name of offense from other state or
federal offense> is the same as a conviction for a felony.]
[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
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control it), either personally or through another person.]
[The defendant and the People have stipulated, or agreed, that the
defendant was previously convicted of a (a felony/a misdemeanor/two
offenses of brandishing a firearm/the crime of <insert
misdemeanor offense from Pen. Code, § 29805 or 23515, or a juvenile
finding from Pen. Code, § 29820, or a juvenile finding from Pen. Code,
§ 29820>). This stipulation means that you must accept this fact as
proved.]
<Alternative A—limiting instruction when stipulation as to conviction>
[Do not consider this fact for any other purpose [except for the limited
purpose of <insert other permitted purpose, e.g., determining
the defendant’s credibility>]. Do not speculate about or discuss the nature
of the conviction.]
<Alternative B—limiting instruction when no stipulation as to conviction>
[You may consider evidence, if any, that the defendant was previously
convicted of a crime only in deciding whether the People have proved
this element of the charged crime [or for the limited purpose of
<insert other permitted purpose, e.g., assessing defendant’s
credibility>]. Do not consider such evidence for any other purpose.]
<Defense: Justifiable Possession>
[If you conclude that the defendant possessed ammunition, that
possession was not unlawful if the defendant can prove that (he/she) was
justified in possessing the ammunition. In order to establish this defense,
the defendant must prove that:
1. (He/She) (found the ammunition/took the ammunition from a
person who was committing a crime against the defendant);
AND
2. (He/She) possessed the ammunition no longer than was necessary
to deliver or transport the ammunition to a law enforcement
agency for that agency to dispose of the ammunition.
The defendant has the burden of proving each element of this defense
by a preponderance of the evidence. This is a different standard of
proof than proof beyond a reasonable doubt. To meet the burden of
proof by a preponderance of the evidence, the defendant must prove
that it is more likely than not that each element of the defense is true.]
New January 2006; Revised February 2012
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Give element 4 only if the prosecution alleges that the defendant was prohibited
from possessing firearms under Penal Code section 29805, possession within 10
years of a specified misdemeanor conviction, or Penal Code section 29820,
possession by someone under 30 years old with a specified juvenile finding.
If the defendant has not stipulated to the conviction, do not give the bracketed
paragraph that begins, “The defendant and the People have stipulated,” and insert
the full name of the offense in element 3B.
If the defendant does stipulate to the conviction, the court must give the bracketed
paragraph that begins, “The defendant and the People have stipulated,” and in
element 3B select the word “felony” or “misdemeanor.” The court must sanitize all
references to the conviction to prevent disclosure of the nature of the conviction to
the jury. (People v. Sapp (2003) 31 Cal.4th 240, 261 [2 Cal.Rptr.3d 554, 73 P.3d
433]; People v. Valentine (1986) 42 Cal.3d 170, 173 [228 Cal.Rptr. 25, 720 P.2d
913].) If the defendant agrees, the court must not read the portion of the
information describing the nature of the conviction. Likewise, the court must ensure
that the verdict forms do not reveal the nature of the conviction.
On request, the court should give the limiting instruction regarding the evidence of
the conviction. (People v. Valentine, supra, 42 Cal.3d at p. 182, fn. 7.) There is no
sua sponte duty to give the limiting instruction, and the defense may prefer that no
limiting instruction be given. (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139
[2 Cal.Rptr.3d 380].) If the defendant does not stipulate to the conviction, give
alternative A. If the defendant does stipulate, give alternative B.
Defenses—Instructional Duty
Penal Code section 30305(c) states that a violation of the statute is “justifiable” if
the listed conditions are met. This is an affirmative defense, and the defense bears
the burden of establishing the defense by a preponderance of the evidence. (Ibid.)
If sufficient evidence has been presented, the court has a sua sponte duty to give
the bracketed paragraph on the defense of justifiable possession. This defense only
applies to persons “prohibited from possessing any ammunition or reloaded
ammunition solely because that person is prohibited from owning or possessing a
firearm only by virtue of [now-repealed] Section 12021.” (Pen. Code, § 30305(b).)
AUTHORITY
• Elements. Pen. Code, § 30305(a).
Ammunition Defined. Pen. Code, § 16150.
• Knowledge. See People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735, 1 P.3d 52].
• Justifiable Possession. Pen. Code, § 30305(b).
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• Limiting Instruction on Prior Conviction. People v. Valentine (1986) 42 Cal.3d
170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913]; People v. Griggs (2003) 110
Cal.App.4th 1137, 1139 [2 Cal.Rptr.3d 380].
• Constructive vs. Actual Possession. See 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 160.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][e] (Matthew Bender).
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