Section 2561 | CALCRIM (Jury Instructions)

in case of a first violation involving not more than two firearms, if more than one
assault weapon or .50 BMG rifle is involved in any violation of this section, there
shall be a distinct and separate offense for each.
The jury must decide if the weapon possessed was an assault weapon or a .50 BMG
rifle. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d
869].) When instructing on the definition of assault weapon or .50 BMG rifle, the
court should not state that the weapon possessed by the defendant was an assault
weapon or was a .50 BMG rifle. In the case of an assault weapon, where indicated
in the instruction, the court may insert a weapon listed in Penal Code section 30510
or a description of a weapon from section 30515. In the case of a .50 BMG rifle,
give the bracketed definition of that term.
If the defendant is charged with both a separate count and an enhancement for
violating Penal Code section 30615 while committing another crime, give this
instruction and CALCRIM No. 2561, Possession, etc., of Assault or .50 BMG Rifle
Weapon While Committing Other Offense: Pen. Code, § 30615—Enhancement of
Punishment for Another Crime (Pen. Code, § 30615; People v. Jimenez (1992) 8
Cal.App.4th 391, 398 [10 Cal.Rptr.2d 281].) If the defendant is only charged with
an enhancement under Penal Code section 30615 and not with a separate count for
violating Penal Code section(s) 30605 or 30610, give only CALCRIM No. 2562,
Possession, etc., of Assault Weapon or .50 BMG Rifle While Committing Other
Offense: Pen. Code, § 30615—Charged Only as Enhancement.
Defenses—Instructional Duty
Registration and permitting procedures are contained in Penal Code sections 30900
to 31005. Exemptions to the statute are stated in Penal Code section 30625 et seq.
The existence of a statutory exemption is an affirmative defense. (People v. Jimenez,
supra, 8 Cal.App.4th at pp. 395–397.) If the defense presents sufficient evidence to
raise a reasonable doubt about the existence of a legal basis for his or her 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 . . . .”
AUTHORITY
•
Elements. Pen. Code, § 30605, 30600.
•
Assault Weapon Defined. Pen. Code §§ 30510, 30515; see also Harrott v. County
of Kings (2001) 25 Cal.4th 1138, 1142–1145 [108 Cal.Rptr.2d 445, 25 P.3d 649]
[discussing statutory definition of assault weapon, amendments to statute and
petition procedure by which the Attorney General may have weapon listed].
•
.50 BMG Rifle Defined. Pen. Code, § 30530.
•
Permits and Registration. Pen. Code, §§ 30900–31005.
•
Exemptions. Pen. Code, § 30625 et seq.
WEAPONS
CALCRIM No. 2560
429

BMG Rifle While Committing Other Offense: Pen. Code, § 30600—Charged Only as
Enhancemen