SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 982 Brandishing Firearm Or Deadly Weapon To Resist Arrest (PC 417.8)
TABLE OF CONTENTS
F 982.1 Titles And Identification Of Parties
F 982.1 Inst 1 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Title
F 982.1 Inst 2 Identification Of Prosecution And Defendant
F 982.2 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 982.3 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 982.4 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Burden Of Proof Issues
F 982.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 982.5 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Elements And Definitions
F 982.5 Inst 1 Brandishing Firearm/Deadly Weapon To Resist Arrest: Brandishing Should Be In Immediate Presence Of Arresting Officer
F 982.5 Inst 2 Drawing or Exhibiting Firearm/Deadly Weapon With Intent To Resist Peace Officer: Knowledge Element (PC 417.8)
F 982.6 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Defense Theories [Reserved]
F 982.7 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Preliminary Fact Issues [Reserved]
F 982.8 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Unanimity/ Duplicity/Multiplicity [Reserved]
F 982.9 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Lesser Offense Issues [Reserved]
F 982 NOTES
F 982 Note 1 Brandishing Firearm Or Deadly Weapon To Resist Arrest—CALCRIM Cross-References And Research Notes
F 982 Note 2 Brandishing Weapon To Avoid Arrest
Return to Series 900 Table of Contents.
F 982.1 Titles And Identification Of Parties
F 982.1 Inst 1 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 982.1 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 982.2 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 982.3 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 982.4 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Burden Of Proof Issues
F 982.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 982.5 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Elements And Definitions
F 982.5 Inst 1 Brandishing Firearm/Deadly Weapon To Resist Arrest: Brandishing Should Be In Immediate Presence Of Arresting Officer
*Add as Element 3:
3. When the defendant drew or exhibited the (firearm/deadly weapon) (he/she) did so in the immediate presence of _______________ <name(s) of arresting officer(s)>.
Points and Authorities
See FORECITE F 980.5 Inst 2.
F 982.5 Inst 2 Drawing or Exhibiting Firearm/Deadly Weapon With Intent To Resist Peace Officer: Knowledge Element (PC 417.8)
*Add to CC 982:
3. The defendant knew that the person making the [arrest] [or] [detention] was a peace officer.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 982 does not make it clear that the defendant must know that the arresting person is a peace officer. For example, if the peace officer is in plain clothes and never states that he or she is an officer, the defendant may specifically intend to avoid arrest or detention which is being made by a peace officer without actually knowing that the person is a peace officer. Because criminal statutes must be construed in the favor of the defendant (Dunn v. United States (1979) 442 US 100, 112 [60 LEd2d 743; 99 SCt 2190; People v. Anderson (1987) 43 C3d 1104, 1145-46), PC 417.8 should require actual knowledge that the person is a peace officer.
See also FORECITE F 9.07 n4 as to the applicability to weapons that are non-inherently dangerous.
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.
CALJIC NOTE: See FORECITE F 9.21.1a.
F 982.6 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Defense Theories [Reserved]
F 982.7 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Preliminary Fact Issues [Reserved]
F 982.8 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Unanimity/ Duplicity/Multiplicity [Reserved]
F 982.9 Brandishing Firearm Or Deadly Weapon To Resist Arrest—Lesser Offense Issues [Reserved]
F 982 NOTES
F 982 Note 1 Brandishing Firearm Or Deadly Weapon To Resist Arrest—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 980 [Brandishing Firearm In Presence Of Occupant Of Motor Vehicle]
CALCRIM 981 [Brandishing Firearm In Presence Of Peace Officer]
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 982 Note 2 Brandishing Weapon To Avoid Arrest
Generally, an instrument which is not an inherently dangerous weapon can only be determined to be a deadly weapon when the following two-prong test is satisfied: (1) the instrument must be “capable” of being used in a deadly fashion, and (2) the possessor must “intend” that it serve such a purpose when the crime is committed. (People v. Raleigh (1932) 128 CA 105, 107-08; People v. Graham (1969) 71 C2d 303, 327-28.) However, for the purposes of PC 417.8, brandishing a weapon to avoid arrest, the two-pronged test for determining whether an instrument is a weapon (see FORECITE F 9.02a and F 12.42 et seq.) does not apply. (People v. Pruett (1997) 57 CA4th 77, 85-86.) When the instrument employed is one which lay people can readily determine to be capable of causing death, no special definition is required. (Ibid.)
CALJIC NOTE: See FORECITE F 9.07 n4.
