SERIES 2500 WEAPONS
B. POSSESSION OF FIREARM BY PERSON PROHIBITED
F 2510 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction (PC 12021(a), (b), (c) & (e), PC 12021.1(a), PC 12001.6)
TABLE OF CONTENTS
F 2510.1 Titles And Identification Of Parties
F 2510.1 Inst 1 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Title
F 2510.1 Inst 2 Identification Of Prosecution And Defendant
F 2510.2 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2510.3 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2510.4 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Burden Of Proof Issues
F 2510.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2510.4 Inst 2 Momentary Possession: Burden Of Proof Should Be On Prosecution
F 2510.4 Inst 3 Justifiable Possession: Burden Of Proof Should Be On Prosecution Because The Defense Relates To The Conduct Of The Defendant
F 2510.4 Inst 4 “Each Element” Language Should Be Removed As The Affirmative Defenses
F 2510.5 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Elements And Definitions [Reserved]
F 2510.6 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Defense Theories [Reserved]
F 2510.7 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Preliminary Fact Issues [Reserved]
F 2510.8 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Unanimity/Duplicity/Multiplicity [Reserved]
F 2510.9 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Lesser-Offense Issues [Reserved]
Return to Series 2500 Table of Contents.
F 2510.1 Titles And Identification Of Parties
F 2510.1 Inst 1 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Title
See generally, FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2510.1 Inst 2 Identification Of Prosecution And Defendant
See generally, FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2510.2 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 2510.3 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 2510.4 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Burden Of Proof Issues
F 2510.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2510.4 Inst 2 Momentary Possession: Burden Of Proof Should Be On Prosecution
See FORECITE F 2305.2 Inst 5.
F 2510.4 Inst 3 Justifiable Possession: Burden Of Proof Should Be On Prosecution Because The Defense Relates To The Conduct Of The Defendant
Add to CC 2510:
[Modify burden of proof so that prosecution is required to prove beyond a reasonable doubt that the defendant did not justifiably possess the firearm]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction—See FORECITE 2764.2 Inst 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 2510.4 Inst 4 “Each Element” Language Should Be Removed As The Affirmative Defenses
*Modify CC 2510, paragraph 13 and 15 as follows [added language is underlined; deleted language is stricken]:
The defendant has the burden of proving each element of this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each element the elements of the defense is are true.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Because CALCRIM Has Removed The “Each Element” Language When Defining The Prosecution’s Burden It Should Also Be Removed From The Defendant’s Burden – The CALCRIM Committee has systematically removed the “each element” language from all of CALCRIM’s instructions which define the prosecution’s burden of proof. (See CC 103 [revised in August 2006], CC 220 [revised in August 2006] and CC 375 [revised in Spring 2008].) (Revised in 2006: CC 220; revised in 2007: CC 103; revised in 2008: CC 375, CC 852, CC 853, CC 1191, CC 2840; CC 361, revised in Spring 2010].)
Because the CALCRIM Committee has determined that the prosecution’s burden should not be described using the “each element” language, such language should also be removed from the CALCRIM instructions which describe the defense burden as to affirmative defenses. (See generally People v. Moore (1954) 43 C2d 517, 526-27 [“[t]here should be absolute impartiality as between the People and the defendant in the matter of instructions, including the phraseology employed in the statement of familiar principles”]; Reagan v. United States (1895) 157 US 301, 310 [15 SCt 610; 39 LEd 709].) Moreover, jury instructions which unnecessarily favor the prosecution over the defense violate the Due Process Clause of the federal constitution. Noting that the Due Process Clause “does speak to the balance of forces between the accused and his accuser,” Wardius held that in the absence of a strong showing of state interests to the contrary “there must be a two-way street” as between the prosecution and the defense. (Wardius v. Oregon (1973) 412 US 470, 474 [37 LEd2d 82; 93 SCt 2208].)
F 2510.5 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Elements And Definitions [Reserved]
F 2510.6 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Defense Theories [Reserved]
F 2510.7 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Preliminary Fact Issues [Reserved]
F 2510.8 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Unanimity/Duplicity/Multiplicity [Reserved]
F 2510.9 Possession Of Firearm By Person Prohibited Due To Conviction—No Stipulation To Conviction—Lesser-Offense Issues [Reserved]
