Section 2514 | CALCRIM (Jury Instructions)

beginning “The People allege that the defendant possessed the following firearms,”
inserting the items alleged.
Element 4 should be given only if the defendant is charged 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.
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions on crimes based on Penal Code
section 29800. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
On request, the court should give the limiting instruction regarding the evidence of
the prior conviction that begins, “You may consider . . . .” (People v. Valentine
(1986) 42 Cal.3d 170, 182, fn. 7 [228 Cal.Rptr. 25, 720 P.2d 913].) 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].)
Defenses—Instructional Duty
“[T]he defense of transitory possession devised in [People v. Mijares (1971) 6
Cal.3d 415, 420, 423 [99 Cal.Rptr. 139, 491 P.2d 1115]] applies only to momentary
or transitory possession of contraband for the purpose of disposal.” (People v.
Martin (2001) 25 Cal.4th 1180, 1191–1192 [108 Cal.Rptr.2d 599, 25 P.3d 1081].)
The court in Martin, supra, approved of People v. Hurtado (1996) 47 Cal.App.4th
805, 814 [54 Cal.Rptr.2d 853], which held that the defense of momentary possession
applies to a charge of violating now-repealed Penal Code section 12021. This is an
affirmative defense, and the defense bears the burden of establishing it by a
preponderance of the evidence. (People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067].) If sufficient evidence has been presented, the
court has a sua sponte duty to give the bracketed paragraph, “Defense: Momentary
Possession.”
Penal Code section 29850 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 it 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, “Defense: Justifiable Possession.”
If there is sufficient evidence that the defendant possessed the firearm only in self-
defense, the court has a sua sponte duty to give CALCRIM No. 2514, Possession
of Firearm by Person Prohibited by Statute—Self-Defense.
AUTHORITY
•
Elements. Pen. Code, §§ 23515, 29800, 29805, 29820, 29900; People v. Snyder
(1982) 32 Cal.3d 590, 592 [186 Cal.Rptr. 485, 652 P.2d 42].
•
Defense of Justifiable Possession. Pen. Code, § 29850.
•
Presenting Evidence of Prior Conviction to Jury. People v. Sapp (2003) 31
CALCRIM No. 2510
WEAPONS
372

Cal.App.4th 177, 184–185 [7 Cal.Rptr.3d 483].) Give the bracketed paragrap