2592. Possession of Ammunition by Person Prohibited From Possessing Firearm Due to Court Order
The defendant is charged [in Count ______] with unlawfully possessing ammunition.
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;
3. A court had ordered that the defendant not (own/ purchase/receive/possess) a firearm(;/.)
<Give element 4 in cases involving restraining orders.>
4 The defendant knew of the court's order.]
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.
[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 defendant and the People have stipulated, or agreed, that a court ordered the defendant not to (own/purchase/receive/possess) a firearm. This stipulation means that you must accept this fact as proved.]
<Alternative A—limiting instruction when stipulation as to order>
[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 why the court's order was made.]
<Alternative B—limiting instruction when no stipulation as to order>
[You may consider evidence, if any, that a court ordered the defendant not to (own/purchase/receive/possess) a firearm 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);
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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Use this instruction only if the prosecution alleges that the defendant was prohibited from possessing firearms under Penal Code section 12021(d)(1), possession by someone prohibited as a condition of probation who was convicted of a crime not listed in other provisions of Penal Code section 12021, or under Penal Code section 12021(g), possession by someone prohibited by a temporary restraining order or other protective order.
Give element 4 only if the prosecution alleges that the defendant was prohibited from possessing firearms under Penal Code section 12021(g).
If the defendant has not stipulated to the probation order, do not give the bracketed paragraph that begins, "The defendant and the People have stipulated."
If the defendant does stipulate to the probation order, the court must give the bracketed paragraph that begins, "The defendant and the People have stipulated." The court must also sanitize all references to the probation order 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 probation condition. (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 probation condition, give alternative A. If the defendant does stipulate, give alternative B.
Penal Code section 12316(d) 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.
Elements. Pen. Code, § 12316(b)(1).
Ammunition Defined. Pen. Code, § 12316(b)(2).
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, § 12316(d).
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].
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[c] (Matthew Bender).
(New January 2006)