California Criminal Jury Instructions (CALCRIM) (2017)

2747. Bringing or Sending Firearm, Deadly Weapon, or Explosive Into Penal Institution

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2747.Bringing or Sending Firearm, Deadly Weapon, or Explosive
Into Penal Institution (Pen. Code, § 4574(a)–(c))
The defendant is charged [in Count ] with (bringing/sending/ [or]
assisting in (bringing/sending)) a weapon into a penal institution [in
violation of Penal Code section 4574].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant [unlawfully] (brought/sent/ [or] assisted in
(bringing/sending)) [(a/an)] (firearm[,]/ [or] deadly weapon[,]/
[or]explosive[,]/ [or] tear gas[,]/ [or] tear gas weapon) into a
penal institution [or onto the grounds (of/ [or] adjacent to) a
penal institution];
2. The defendant knew that (he/she) was (bringing/sending/ [or]
assisting in (bringing/sending)) an object into a penal institution
[or onto the grounds (of/ [or] adjacent to) a penal institution];
AND
3. The defendant knew that the object was [(a/an)] (firearm[,]/ [or]
deadly weapon[,]/ [or] explosive[,]/ [or] tear gas[,]/ [or] tear gas
weapon).
Apenal institution is a (state prison[,]/ [or] prison camp or farm[,]/ [or]
jail[,]/ [or] county road camp[,]/ [or] place where prisoners of the state
prison are located under the custody of prison officials, officers, or
employees).
[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
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combined with other substances to create a new substance that can
release gas and heat rapidly or relatively instantaneously.]
[<insert type[s] of explosive[s] from Health & Saf. Code,
§ 12000> (is/are) [an] explosive[s].]
[Tear gas means 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 means any 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 if 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)).]
[The People allege that the defendant (brought/sent/ [or] assisted in
(bringing/sending)) 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 (brought/sent/ [or] assisted in (bringing/
sending)) at least one of these weapons and you all agree on which
weapon (he/she) (brought/sent/ [or] assisted in (bringing/sending)).]
<Defense: Conduct Authorized>
[The defendant is not guilty of this offense if (he/she) was authorized to
(bring/send) a weapon into the penal institution by (law[,]/ [or] a person
in charge of the penal institution[,]/ [or] an officer of the penal
institution empowered by the person in charge of the institution to give
such authorization). The People have the burden of proving beyond a
reasonable doubt that the defendant was not authorized to (bring/send)
the weapon into the institution. If the People have not met this burden,
you must find the defendant not guilty of this offense.]
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.
If the prosecution alleges under a single count that the defendant brought or sent
multiple weapons into the institution, 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 (brought/sent/ [or] assisted in (bringing/sending)),” inserting the items
alleged.
If the defendant is charged with a felony for bringing or sending tear gas or a tear
gas weapon into a penal institution resulting in the release of tear gas (Pen. Code,
§ 4574(b)), the court has a sua sponte duty to instruct the jury on this additional
allegation. The court should give the jury an additional instruction on this issue and
a verdict form on which the jury may indicate if this fact has or has not been
proved.
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, 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 bring or send the
weapon, give the bracketed word “unlawfully” in element 1. Give also the
bracketed paragraph headed “Defense: Conduct Authorized.”
AUTHORITY
• Elements. Pen. Code, § 4574(a), (b) & (c).
Firearm Defined. Pen. Code, § 16520.
• Explosive Defined. Health & Saf. Code, § 12000.
• Tear Gas Defined. Pen. Code, § 17240.
• Tear Gas Weapon Defined. Pen. Code, § 17250.
• 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 of Nature of Object. 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].
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• Knowledge of Location as Penal Institution. People v. Seale (1969) 274
Cal.App.2d 107, 111 [78 Cal.Rptr. 811].
• 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].
• “Adjacent to” and “Grounds” Not Vague. People v. Seale (1969) 274
Cal.App.2d 107, 114–115 [78 Cal.Rptr. 811].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 100.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01 (Matthew Bender).
LESSER INCLUDED OFFENSES
• Attempt to Bring or Send Weapon Into Penal Institution. Pen. Code, §§ 664,
4574(a), (b), or (c); People v. Carter (1981) 117 Cal.App.3d 546, 548 [172
Cal.Rptr. 838].
If the defendant is charged with bringing or sending tear gas or a tear gas weapon
into a penal institution, the offense is a misdemeanor unless tear gas was released
in the institution. (Pen. Code, § 4574(b) & (c).) If the defendant is charged with a
felony, then the misdemeanor offense is a lesser included offense. The court must
provide the jury with a verdict form on which the jury will indicate if the
prosecution has proved that tear gas was released. If the jury finds that this has not
been proved, then the offense should be set at a misdemeanor.
RELATED ISSUES
Inmate Transferred to Mental Hospital
Aprison inmate transferred to a mental hospital for treatment pursuant to Penal
Code section 2684 is not “under the custody of prison officials.” (People v.
Superior Court (Ortiz) (2004) 115 Cal.App.4th 995, 1002 [9 Cal.Rptr.3d 745].)
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