California Criminal Jury Instructions (CALCRIM) (2017)

2745. Possession or Manufacture of Weapon in Penal Institution

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(iii) Possession of Contraband
2745.Possession or Manufacture of Weapon in Penal Institution
(Pen. Code, § 4502)
The defendant is charged [in Count ] with (possessing[,]/ [or]
manufacturing[,]/ [or] attempting to manufacture) a weapon, specifically
[(a/an)] <insert type of weapon from Pen. Code, § 4502, e.g.,
“explosive”>, while (in a penal institution/being taken to or from a
penal institution/under the custody of an (official/officer/employee) of a
penal institution) [in violation of Penal Code section 4502].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was (present at or confined in a penal institution/
being taken to or from a penal institution/under the custody of
an (official/officer/employee) of a penal institution);
2. The defendant (possessed[,]/ [or] carried on (his/her) person[,]/
[or] had under (his/her) custody or control[,]/ [or]
manufactured[,]/ [or] attempted to manufacture) [(a/an)]
<insert type of weapon from Pen. Code, § 4502, e.g.,
“explosive”>;
3. The defendant knew that (he/she) (possessed[,]/ [or] carried on
(his/her) person[,]/ [or] had under (his/her) custody or control[,]/
[or] manufactured[,]/ [or] attempted to manufacture) the
<insert type of weapon from Pen. Code, § 4502, e.g.,
“explosive”>;
AND
4. The defendant knew that the object (was [(a/an)]
<insert type of weapon from Pen. Code, § 4502, e.g., “explosive”>/
could be used <insert description of weapon’s use,
e.g., “as a stabbing weapon,” or “for purposes of offense or
defense”>).
Apenal institution is a (state prison[,]/ [or] prison camp or farm[,]/ [or]
county jail[,]/ [or] county road camp).
[Metal knuckles means any device or instrument made wholly or
partially of metal that is worn in or on the hand for purposes of offense
or defense and that either protects the wearer’s hand while striking a
blow or increases the injury or force of impact from the blow. The
metal contained in the device may help support the hand or fist, provide
a shield to protect it, or consist of projections or studs that would
contact the individual receiving a blow.]
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[An explosive is any substance, or combination of substances, (1) whose
main or common purpose is to detonate or rapidly combust and (2)
which is capable of a relatively instantaneous or rapid release of gas
and heat.]
[An explosive is also any substance whose main purpose is to be
combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[<insert type of explosive from Health & Saf. Code, § 12000>
(is/are) [an] explosive[s].]
[Fixed ammunition is a projectile and powder enclosed together in a
case ready for loading.]
[A dirk or dagger is a knife or other instrument, with or without a
handguard, that is capable of ready use as a stabbing weapon that may
inflict great bodily injury or death.] [Great bodily injury means
significant or substantial physical injury. It is an injury that is greater
than minor or moderate harm.]
[A firearm is any device designed to be used as a weapon, from which a
projectile is discharged or expelled through a barrel by the force of an
explosion or other form of combustion.] [A firearm need not be in
working order if it was designed to shoot and appears capable of
shooting.]
[Tear gas is a liquid, gaseous, or solid substance intended to produce
temporary physical discomfort or permanent injury when vaporized or
otherwise dispersed in the air.]
[A tear gas weapon is a shell, cartridge, or bomb capable of being
discharged or exploded to release or emit tear gas.] [A tear gas weapon
[also] means a revolver, pistol, fountain pen gun, billy, or other device,
portable or fixed, intended specifically to project or release tear gas.] [A
tear gas weapon does not include a device regularly manufactured and
sold for use with firearm ammunition.]
[[(A/An)] <insert type of weapon from Pen. Code, § 4502, not
covered in above definitions> (is/means/includes) <insert
appropriate definition, see Bench Notes>.]
The People do not have to prove that the defendant used or intended to
use the object as a weapon.
[You may consider evidence that the object could be used in a harmless
way in deciding if the object is (a/an) <insert type of
weapon from Pen. Code, § 4502>, as defined here.]
[The People do not have to prove that the object was (concealable[,]/
[or] carried by the defendant on (his/her) person[,]/ [or] (displayed/
visible)).]
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[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 People allege that the defendant (possessed[,]/ [or] carried on (his/
her) person[,]/ [or] had under (his/her) custody or control[,]/ [or]
manufactured[,]/ [or] attempted to manufacture) the following weapons:
<insert description of each weapon when multiple items
alleged>.You may not find the defendant guilty unless all of you agree
that the People have proved that the defendant (possessed[,]/ [or]
carried on (his/her) person[,]/ [or] had under (his/her) custody or
control[,]/ [or] manufactured[,]/ [or] attempted to manufacture) at least
one of these weapons and you all agree on which weapon (he/she)
(possessed[,]/ [or] carried on (his/her) person[,]/ [or] had under (his/her)
custody or control[,]/ [or] manufactured[,]/ [or] attempted to
manufacture).]
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.
Where indicated in the instruction, insert one or more of the following weapons
from Penal Code section 4502, based on the evidence presented:
metal knuckles
explosive substance
fixed ammunition
dirk or dagger
sharp instrument
pistol, revolver, or other firearm
tear gas or tear gas weapon
an instrument or weapon of the kind commonly known as a blackjack,
slungshot, billy, sandclub, sandbag
Following the elements, give the appropriate definition of the alleged weapon. If
the prosecution alleges that the defendant possessed an “instrument or weapon of
the kind commonly known as a blackjack, slungshot, billy, sandclub, [or] sandbag,”
the court should give an appropriate definition based on case law. (See People v.
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Fannin (2001) 91 Cal.App.4th 1399, 1402 [111 Cal.Rptr.2d 496] [definition of
“slungshot”]; People v. Mulherin (1934) 140 Cal.App. 212, 215 [35 P.2d 174]
[definition of this class of weapons].)
If the prosecution alleges under a single count that the defendant possessed
multiple weapons, 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]; People
v. Rowland (1999) 75 Cal.App.4th 61, 65 [88 Cal.Rptr.2d 900].) Give the bracketed
paragraph that begins with “The People allege that the defendant possessed,”
inserting the items alleged.
If there is sufficient evidence of a harmless use for the object possessed, give the
bracketed sentence that begins with “You may consider evidence that the object
could be used in a harmless way . . . .” (People v. Savedra (1993) 15 Cal.App.4th
738, 743–744 [19 Cal.Rptr.2d 115].)
If the prosecution alleges that the defendant attempted to manufacture a weapon,
give CALCRIM No. 460, Attempt Other Than Attempted Murder.
It is unclear if the defense of momentary possession for disposal applies to a
charge of weapons possession in a penal institution. In People v. Brown (2000) 82
Cal.App.4th 736, 740 [98 Cal.Rptr.2d 519], the court held that the defense was not
available on the facts of the case before it but declined to consider whether “there
can ever be a circumstance justifying temporary possession in a penal institution.”
(Ibid. [emphasis in original].) The California Supreme Court has reaffirmed that the
momentary possession defense is available to a charge of illegal possession of a
weapon. (People v. Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d
599, 25 P.3d 1081].) However, the Supreme Court has yet to determine whether the
defense is available in a penal institution. If the trial court determines that an
instruction on momentary possession is warranted on the facts of the case before it,
give a modified version of the instruction on momentary possession contained in
CALCRIM No. 2510, Possession of Firearm by Person Prohibited Due to
Conviction—No Stipulation to Conviction.
If there is sufficient evidence of imminent death or bodily injury, the defendant
may be entitled to an instruction on the defense of duress or threats. (People v. Otis
(1959) 174 Cal.App.2d 119, 125–126 [344 P.2d 342].) Give CALCRIM No. 3402,
Duress or Threats, modified as necessary.
AUTHORITY
• Elements. Pen. Code, § 4502.
Metal Knuckles Defined. Pen. Code, § 21810.
• Explosive Defined. Health & Saf. Code, § 12000.
• Fixed Ammunition. The Department of Defense Dictionary of Military Terms,
http://www.dtic.mil/doctrine/dod_dictionary/ (accessed January 11, 2012).
• Dirk or Dagger Defined. Pen. Code, § 16470.
• Firearm Defined. Pen. Code, § 16520.
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• Tear Gas Defined. Pen. Code, § 17240.
• Tear Gas Weapon Defined. Pen. Code, § 17250.
• Blackjack, etc., Defined. People v. Fannin (2001) 91 Cal.App.4th 1399, 1402
[111 Cal.Rptr.2d 496]; People v. Mulherin (1934) 140 Cal.App. 212, 215 [35
P.2d 174].
• Knowledge. See People v. Rubalcava (2000) 23 Cal.4th 322, 331–332 [96
Cal.Rptr.2d 735]; People v. Reynolds (1988) 205 Cal.App.3d 776, 779 [252
Cal.Rptr. 637], overruled on other grounds, People v. Flood (1998) 18 Cal.4th
470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Harmless Use. People v. Savedra (1993) 15 Cal.App.4th 738, 743–744 [19
Cal.Rptr.2d 115]; People v. Martinez (1998) 67 Cal.App.4th 905, 910–913 [79
Cal.Rptr.2d 334].
• Unanimity. People v. Wolfe (2003) 114 Cal.App.4th 177, 184–185 [7
Cal.Rptr.3d 483].
• Constructive vs. Actual Possession. People v. Reynolds (1988) 205 Cal.App.3d
776, 782, fn. 5 [252 Cal.Rptr. 637], overruled on other grounds in People v.
Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 182, 184.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 94,
Prisoners’ Rights, § 94.04 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01 (Matthew Bender).
RELATED ISSUES
Administrative Punishment Does Not Bar Criminal Action
“[P]rison disciplinary measures do not bar subsequent prosecution in a criminal
action for violation of a penal statute prohibiting the same act which was the basis
of the prison discipline by virtue of the proscription against double punishment
provided in section 654 [citation] or by the proscription against double jeopardy
provided in the California Constitution (art. I, § 13) and section 1023.” (People v.
Vatelli (1971) 15 Cal.App.3d 54, 58 [92 Cal.Rptr. 763] [citing People v. Eggleston
(1967) 255 Cal.App.2d 337, 340 [63 Cal.Rptr. 104]].)
Possession of Multiple Weapons at One Time Supports Only One Conviction
“[D]efendant is subject to only one conviction for his simultaneous possession of
three sharp wooden sticks in prison.” (People v. Rowland (1999) 75 Cal.App.4th
61, 65 [88 Cal.Rptr.2d 900].)
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