2746. Possession of Firearm, Deadly Weapon, or Explosive in a Jail or County Road Camp
The defendant is charged [in Count ______] with possessing a weapon while confined in a (jail/county road camp).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was lawfully confined in a (jail/county road camp);
2. While confined there, the defendant [unlawfully] possessed [(a/an)] (firearm[,]/ [or] deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas weapon) within the (jail/ county road camp);
3. The defendant knew that (he/she) possessed the (firearm[,]/ [or] deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas weapon);
4. The defendant knew that the object was [(a/an)] (firearm[,]/ [or] deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas weapon).
[A jail is a place of confinement where people are held in lawful custody.]
[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.]
[As used here, a deadly weapon is any weapon, instrument, or object that has the reasonable potential of being used in a manner that would cause 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.]
[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].]
[Tear gas is a liquid, gaseous, or solid substance intended to produce temporary physical discomfort or permanent injury through being 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.]
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 whether the object is a deadly weapon 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)).]
[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 knowingly has (control over it/ [or] the right to control it), either personally or through another person).]
[The People allege that the defendant possessed 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 at least one of these weapons and you all agree on which weapon (he/she) possessed.]
<Defense: Possession Authorized>
[The defendant is not guilty of this offense if (he/she) was authorized to possess the weapon by (law[,]/ [or] a person in charge of the (jail/county road camp)[,]/ [or] an officer of the (jail/county road camp) empowered by the person in charge of the (jail/camp) to give such authorization). The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess the weapon. If the People have not met this burden, you must find the defendant not guilty of this offense.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
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.
Note that the definition of "deadly weapon" in the context of Penal Code section 4574 differs from the definition given in other instructions. (People v. Martinez (1998) 67 Cal.App.4th 905, 909 [79 Cal.Rptr.2d 334].)
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 there is sufficient evidence that the defendant was authorized to possess the weapon, give the bracketed word "unlawfully" in element 2. Give also the bracketed paragraph headed "Defense: Possession Authorized."
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.
Elements. Pen. Code, § 4574(a).
Firearm Defined. Pen. Code, § 12001(b).
Explosive Defined. Health & Saf. Code, § 12000.
Tear Gas Defined. Pen. Code, § 12401.
Tear Gas Weapon Defined. Pen. Code, § 12402.
Deadly Weapon Defined. People v. Martinez (1998) 67 Cal.App.4th 905, 909 [79 Cal.Rptr.2d 334].
Jail Defined. People v. Carter (1981) 117 Cal.App.3d 546, 550 [172 Cal.Rptr. 838].
Knowledge. See People v. Rubalcava (2000) 23 Cal.4th 322, 331-332 [96 Cal.Rptr.2d 735, 1 P.3d 52]; People v. James (1969) 1 Cal.App.3d 645, 650 [81 Cal.Rptr. 845].
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].
Firearm Need Not Be Operable. People v. Talkington (1983) 140 Cal.App.3d 557, 563 [189 Cal.Rptr. 735].
Constructive vs. Actual Possession. People v. Reynolds (1988) 205 Cal.App.3d 776, 782, fn. 5 [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].
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[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).
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]].)
(New January 2006)