Section 2540 | CALCRIM (Jury Instructions)

defendant not guilty of this crime.]
New January 2006; Revised February 2012, March 2021
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime. If the defendant is charged with any of the sentencing factors in Penal Code
section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Penal Code section 25400(a) prohibits carrying a concealed “pistol, revolver, or
other firearm capable of being concealed upon the person.” Penal Code section
16530 provides a single definition for this class of weapons. Thus, the committee
has chosen to use solely the all-inclusive phrase “firearm capable of being concealed
on the person.”
Defenses—Instructional Duty
Exemptions and a justification for carrying a concealed firearm are stated in Penal
Code sections 25600, 25605, 25525, 25510, and 25450. If sufficient evidence has
been presented to raise a reasonable doubt about the existence of a legal basis for
the defendant’s actions, the court has a sua sponte duty to give the bracketed
instruction on the defense. (See People v. Mower (2002) 28 Cal.4th 457, 478–481
[122 Cal.Rptr.2d 326, 49 P.3d 1067] [discussing affirmative defenses generally and
the burden of proof].) Insert the appropriate language in the bracketed paragraph
that begins, “The defendant did not unlawfully . . . .”
Related Instructions
CALCRIM No. 2540, Carrying Firearm: Specified Convictions.
CALCRIM No. 2541, Carrying Firearm: Stolen Firearm.
CALCRIM No. 2542, Carrying Firearm: Active Participant in Criminal Street
Gang.
CALCRIM No. 2543, Carrying Firearm: Not in Lawful Possession.
CALCRIM No. 2544, Carrying Firearm: Possession of Firearm Prohibited Due to
Conviction, Court Order, or Mental Illness.
CALCRIM No. 2545, Carrying Firearm: Not Registered Owner.
CALCRIM No. 2546, Carrying Concealed Firearm: Not Registered Owner and
Weapon Loaded.
CALCRIM No. 2520
WEAPONS
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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 defendant is charged with any of the sentencing factors in Penal Code
section 25400(c), the court must also give the appropriate instruction from
CALCRIM Nos. 2540–2546. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79
Cal.Rptr.2d 690].)
The court should give the bracketed definition of “firearm capable of being
concealed on the person” unless the court has already given the definition in other
instructions. In such cases, the court may give the bracketed sentence stating that
the term is defined elsewhere.
Penal Code section 25400(a) prohibits carrying a concealed “pistol,