Section 2746 | CALCRIM (Jury Instructions)

[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.]
New January 2006; Revised February 2012, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
CALCRIM No. 2746
CRIMES AGAINST GOVERNMENT
632

AUTHORITY
•
Elements. Pen. Code, § 4574(a).
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Firearm Defined. Pen. Code, § 16520.
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Explosive Defined. Health & Saf. Code, § 12000.
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Tear Gas Defined. Pen. Code, § 17240.
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Tear Gas Weapon Defined. Pen. Code, § 17250.
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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].
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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