SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 984 Brandishing Firearm: Misdemeanor—Public Place (PC 417(a)(2)(A))
TABLE OF CONTENTS
F 984.1 Titles And Identification Of Parties
F 984.1 Inst 1 Brandishing Firearm: Misdemeanor—Public Place —Title
F 984.1 Inst 2 Identification Of Prosecution And Defendant
F 984.2 Brandishing Firearm: Misdemeanor—Public Place: Tailoring To Facts: Persons, Places, Things And Theories
F 984.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts; Including Definitions In Corresponding Element
F 984.3 Brandishing Firearm: Misdemeanor—Public Place: Language That Is Argumentative, Confusing, Etc.
F 984.3 Inst 1 Jurors Not Required To Decide
F 984.4 Brandishing Firearm: Misdemeanor—Public Place: Burden Of Proof Issues
F 984.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 984.4 Inst 2 Clarification That Prosecution Must Prove Every Element Of Charge Beyond A Reasonable Doubt
F 984.5 Brandishing Firearm: Misdemeanor—Public Place: Elements And Definitions
F 984.5 Inst 1 Clarification Of “Public Place”
F 984.6 Brandishing Firearm: Misdemeanor—Public Place: Defense Theories [Reserved]
F 984.7 Brandishing Firearm: Misdemeanor—Public Place: Preliminary Fact Issues [Reserved]
F 984.8 Brandishing Firearm: Misdemeanor—Public Place: Unanimity/Duplicity/Multiplicity [Reserved]
F 984.9 Brandishing Firearm: Misdemeanor—Public Place: Lesser Offense Issues [Reserved]
Return to Series 900 Table of Contents.
F 984.1 Titles And Identification Of Parties
F 984.1 Inst 1 Brandishing Firearm: Misdemeanor—Public Place —Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 984.1 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 984.2 Brandishing Firearm: Misdemeanor—Public Place: Tailoring To Facts: Persons, Places, Things And Theories
F 984.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts; Including Definitions In Corresponding Element
*Modify CC 984, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drew or exhibited a firearm;
AND
2. That firearm was capable of being concealed on the person;
AND
2 3. When the defendant did so, (he/she) was (in _____________ a public place in an incorporated city <name or description of public place>/ [or] on ____________ a public street <name or description of public street>).
[4. As used here, ___________<name or description of public place> is a public place is a place that is open and accessible to anyone who wishes to go there.]
[4. ____________<name or description of public street> is a public street.]
[Delete paragraph 5 [definition of “public place”].]
Points and Authorities
Separate Enumeration Of Elements—See FORECITE F 3500.2 Inst 1.
Tailoring To Facts—See FORECITE F 400.2 Inst 1.
Including Definition In Corresponding Element—See FORECITE F 417.5 Inst 2.
F 984.3 Brandishing Firearm: Misdemeanor—Public Place: Language That Is Argumentative, Confusing, Etc.
F 984.3 Inst 1 Jurors Not Required To Decide
*Modify CC 984, paragraph 1, as follows [added language is underlined]:
If you find the defendant guilty of brandishing a firearm, you must then decide, if you can, whether the People have proved the additional allegation that the defendant brandished a firearm that was capable of being concealed on the person while in a public place.
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 984.4 Brandishing Firearm: Misdemeanor—Public Place: Burden Of Proof Issues
F 984.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 984.4 Inst 2 Clarification That Prosecution Must Prove Every Element Of Charge Beyond A Reasonable Doubt
*Modify CC 984, paragraph 5, as follows [added language is underlined]:
The People have the burden of proving every element of this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—The final paragraph of CALCRIM 984 is potentially ambiguous and misleading because it refers to the burden of proving “this allegation.” Because there are several separately enumerated sub-allegations or elements which precede the final paragraph, the above modification is necessary to assure the jurors understand that the final paragraph applies to all elements set forth in the instruction.
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 984.5 Brandishing Firearm: Misdemeanor—Public Place: Elements And Definitions
F 984.5 Inst 1 Clarification Of “Public Place”
*Modify CC 984, Element 2, as follows [added language is underlined]:
2. When the defendant did so, (he/she) was (in a public place in an incorporated city/ [or] on a public street in an incorporated city or an unincorporated area).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of Public Place—See PC 417(a)(2)(A).
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 984.6 Brandishing Firearm: Misdemeanor—Public Place: Defense Theories[Reserved]
F 984.7 Brandishing Firearm: Misdemeanor—Public Place: Preliminary Fact Issues [Reserved]
F 984.8 Brandishing Firearm: Misdemeanor—Public Place: Unanimity/Duplicity/Multiplicity [Reserved]
F 984.9 Brandishing Firearm: Misdemeanor—Public Place: Lesser Offense Issues[Reserved]
