SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 981 Brandishing Firearm In Presence Of Peace Officer (PC 417(c) & (e))
TABLE OF CONTENTS
F 981.1 Titles And Identification Of Parties
F 981.1 Inst 1 Brandishing Firearm In Presence Of Peace Officer—Title
F 981.1 Inst 2 Identification Of Prosecution And Defendant
F 981.2 Brandishing Firearm In Presence Of Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories
F 981.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 981.3 Brandishing Firearm In Presence Of Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 981.3 Inst 1 Specification Of Cross-Referenced Instruction
F 981.3 Inst 2 Deletion Of Argumentative Language
F 981.4 Brandishing Firearm In Presence Of Peace Officer—Burden Of Proof Issues
F 981.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 981.4 Inst 2 Modification Of Burden Shifting Language
F 981.4 Inst 3 Knowledge That Person Was A Peace Officer Performing His Or Her Duties
F 981.5 Brandishing Firearm In Presence Of Peace Officer—Elements And Definitions
F 981.5 Inst 1 Brandishing Firearm: Definition of “Rude” (PC 417)
F 981.6 Brandishing Firearm In Presence Of Peace Officer—Defense Theories
F 981.6 Inst 1 Clarification Of Self-Defense
F 981.6 Inst 2 Brandishing: Weapon Drawn In Jest (PC 417)
F 981.7 Brandishing Firearm In Presence Of Peace Officer—Preliminary Fact Issues [Reserved]
F 981.8 Brandishing Firearm In Presence Of Peace Officer—Unanimity/Duplicity/Multiplicity [Reserved]
F 981.9 Brandishing Firearm In Presence Of Peace Officer—Lesser Offense Issues [Reserved]
F 981 NOTES
F 981 Note 1 Brandishing Firearm In Presence Of Peace Officer—CALCRIM Cross-References And Research Notes
F 981 Note 2 Brandishing Firearm: “Reasonably Should Know” Standard Requires Consideration Of Physical Disabilities (PC 417)
Return to Series 900 Table of Contents.
F 981.1 Titles And Identification Of Parties
F 981.1 Inst 1 Brandishing Firearm In Presence Of Peace Officer—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 981.1 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 981.2 Brandishing Firearm In Presence Of Peace Officer—Tailoring To Facts: Persons, Places, Things And Theories
F 981.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 981, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drew or exhibited a firearm in the immediate presence of a peace officer __________________<name of peace officer>;
2. The defendant drew or exhibited the firearm in a rude, angry, or threatening manner;
AND
3. When the defendant acted did so, __________________<name of peace officer> was:
A. the A peace officer was;
AND
B. Lawfully performing (his/her) duties;
[AND]
4. When the defendant acted drew or exhibited the firearm, (he/she) knew, or reasonably should have known, from the person’s uniform or other identifying action[s] that the person __________________<name of peace officer> was a peace officer who was performing (his/her) duties(;/.)
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Replace “Acted” With Did So Or “When The Defendant Drew Or Exhibited”—See FORECITE F 251 Inst 3; compare CC 982, Element 2, CC 985, Element 4.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
Tailoring To Facts—See FORECITE F 400.2 Inst 2.
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 981.3 Brandishing Firearm In Presence Of Peace Officer—Language That Is Argumentative, Confusing, Etc.
F 981.3 Inst 1 Specification Of Cross-Referenced Instruction
*Modify CC 981, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
[The term firearm is defined inanother Instruction(s)______ to which you should refer must apply to this instruction.]
Points and Authorities
See FORECITE F 524.3 Inst 2.
F 981.3 Inst 2 Deletion Of Argumentative Language
*Modify CC 981, paragraph 5, as follows [deleted language is stricken]:
[It is not required that the firearm be loaded.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 981.4 Brandishing Firearm In Presence Of Peace Officer—Burden Of Proof Issues
F 981.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 981.4 Inst 2 Modification Of Burden Shifting Language
*Modify CC 981, paragraph 9, as follows 2 [added language is underlined; deleted language is stricken]:
[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or nonexcessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 981.4 Inst 3 Knowledge That Person Was A Peace Officer Performing His Or Her Duties
See FORECITE F 860.4 Inst 2.
F 981.5 Brandishing Firearm In Presence Of Peace Officer—Elements And Definitions
F 981.5 Inst 1 Brandishing Firearm: Definition of “Rude” (PC 417)
*Add to CC 981:
For purposes of this instruction, the term rude means rough, incivil, and violent.
Points and Authorities:
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—PC 417(a)(1) proscribes drawing or exhibiting a weapon in a “rude, angry, or threatening manner.” While no published decision has addressed the definition of the term “rude,” common sense as well as sound principles of statutory construction (Mercer v. DMV (1991) 53 C3d 753, 763) require that the term be narrowly defined. Under the broadest of meanings (i.e., “impolite” or “discourteous” (see Websters 3d New Int’l Dictionary (1964) p. 1485) pointing a gun at anyone for any reason is “rude.” However, such a broad definition would result in a form of strict liability. Anyone who pointed a weapon at another, even innocently, would necessarily be found to have exhibited the weapon in a “rude” manner. By requiring the drawing or exhibiting of a firearm to be done “in a rude, angry, or threatening manner,” the legislature intended to limit the section’s application and did not intend the section to impose strict liability. Thus, “rude” should be defined narrowly as meaning “rough, incivil, and violent.”
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Under this definition, pointing or displaying a weapon in jest is not a violation of the statute. (See FORECITE F 981.6 Inst 2; F 9.21b.)
CALJIC NOTE: See FORECITE F 9.21a.
F 981.6 Brandishing Firearm In Presence Of Peace Officer—Defense Theories
F 981.6 Inst 1 Clarification Of Self-Defense
*Modify CC 981, Element 5, as follows [added language is underlined; deleted language is stricken]:
5. The defendant did not act draw or exhibit the firearm [either] (in self-defense/ [or] in defense of someone else) [,or both].]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
[Either] [Or]—Without inserting the term “either,” the jurors could convict by finding that in situations where the defendant acted in self-defense or defense of someone else but not both.
Or Both—When appropriate, the jurors should understand that the defendant is not guilty when both self-defense and defense of others applies.
Draw Or Exhibit—This language is needed to correlate the self-defense with the brandishing. (Compare CC 982, Element 2, CC 985, Element 4; see also FORECITE F 251 Inst 3.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 981.6 Inst 2 Brandishing: Weapon Drawn In Jest (PC 417)
*Add to CC 981:
Evidence has been received which may tend to show that the defendant did not draw or exhibit the weapon in a rude, angry or threatening manner because [he] [she] drew the weapon in jest. If, after consideration of all the evidence, you have a reasonable doubt that the defendant drew or exhibited the weapon in a rude, angry of threatening manner, you must find [him] [her] not guilty of brandishing a deadly weapon. Evidence that the defendant drew the gun in jest may be sufficient by itself to leave you with a reasonable doubt as to the guilt of the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 C3d 143, 159; People v. Sears (1970) 2 C3d 180, 190.) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (1991) 54 C3d 1103, 1120; see also, People v. Wharton (1991) 53 C3d 522, 570; People v. Wright (1988) 45 C3d 1126, 1136-37 [pinpoint instruction proper if it is predicated upon defendant’s theory].)
(See also FORECITE F 315.1.2 Inst 2.)
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 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
See also People v. Carpio UNPUBLISHED (E008819).)
CALJIC NOTE: See FORECITE F 9.21b.
F 981.7 Brandishing Firearm In Presence Of Peace Officer—Preliminary Fact Issues [Reserved]
F 981.8 Brandishing Firearm In Presence Of Peace Officer—Unanimity/Duplicity/Multiplicity [Reserved]
F 981.9 Brandishing Firearm In Presence Of Peace Officer—Lesser Offense Issues [Reserved]
F 981 NOTES
F 981 Note 1 Brandishing Firearm In Presence Of Peace Officer—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 980 [Brandishing Firearm In Presence Of Occupant Of Motor Vehicle]
CALCRIM 982 [Brandishing Firearm Or Deadly Weapon To Resist Arrest]
CALCRIM 983 [Brandishing Firearm Or Deadly Weapon: Misdemeanor]
CALCRIM 984 [Brandishing Firearm: Misdemeanor—Public Place]
CALCRIM 985 [Brandishing Imitation Firearm]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 981 Note 2 Brandishing Firearm: “Reasonably Should Know” Standard Requires Consideration Of Physical Disabilities (PC 417)
The defendant has the right to an instruction that the “reasonably should know” requirement should be evaluated in light of the defendant’s physical disabilities. (People v. Mathews (1994) 25 CA4th 89, 99.)
CALJIC NOTE: See FORECITE F 9.21 n1.
