SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 985 Brandishing Imitation Firearm (PC 417.4)
TABLE OF CONTENTS
F 985.1 Titles And Identification Of Parties
F 985.1 Inst 1 Brandishing Imitation Firearm—Title
F 985.1 Inst 2 Identification Of Prosecution And Defendant
F 985.2 Brandishing Imitation Firearm—Tailoring To Facts: Persons, Places, Things And Theories
F 985.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 985.3 Brandishing Imitation Firearm—Language That Is Argumentative, Confusing, Etc.
F 985.3 NOTES
F 985.3 Note 1 Brandishing Firearm Or Deadly Weapon: Misdemeanor – CALCRIM Cross-References And Research Notes
F 985.4 Brandishing Imitation Firearm—Burden Of Proof Issues
F 985.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 985.5 Brandishing Imitation Firearm—Elements And Definitions
F 985.5 Inst 1 Real Appearance Of Imitation Firearm As Element Of The Offense
F 985.6 Brandishing Imitation Firearm—Defense Theories
F 985.6 Inst 1 Clarification Of Self-Defense
F 985.7 Brandishing Imitation Firearm—Preliminary Fact Issues [Reserved]
F 985.8 Brandishing Imitation Firearm—Unanimity/Duplicity/Multiplicity [Reserved]
F 985.9 Brandishing Imitation Firearm—Lesser Offense Issues [Reserved]
F 985 NOTES
F 985 Note 1 Brandishing Imitation Firearm—CALCRIM Cross-References And Research Notes
F 985 Note 2 Brandishing Imitation Firearms: Instilling Fear In Bystander Sufficient (PC 417.4)
F 985 Note 3 Self-Defense Generally
F 985 Note 4 Self-Defense Available When Defendant Threatens To Use Force
Return to Series 900 Table of Contents.
F 985.1 Titles And Identification Of Parties
F 985.1 Inst 1 Brandishing Imitation Firearm—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 985.1 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 985.2 Brandishing Imitation Firearm—Tailoring To Facts: Persons, Places, Things And Theories
F 985.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 985, Elements, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drew or exhibited an imitation firearm;
2. (He/She) did so in a threatening manner against another person _____________ <name of person against whom firearm was drawn or exhibited>;
AND
2 3. The defendant’s act When the defendant drew or exhibited the imitation firearm it caused someone _____________ <name of person against whom firearm was drawn or exhibited> [or] _____________ <name of person alleged to have feared bodily harm> to fear bodily harm to himself or herself or someone else to _____________ <name of person for whom fearing person was afraid>;
[AND]
3 4. That fear of harm was A reasonable person in _____________’s <name of person who was afraid> situation and knowing what _____________ <who was afraid> knew would have feared bodily harm to [(himself/herself)] [ _____________<name of person for whom fearing person was afraid>](;/.)
[Renumbering remaining Elements.]
Points and Authorities
Separate Enumeration Of Elements—See FORECITE F 3500.2 Inst 1.
Tailoring To Facts—See FORECITE F 400.2 Inst 1.
F 985.3 Brandishing Imitation Firearm—Language That Is Argumentative, Confusing, Etc.
F 985.3 NOTES
F 985.3 Note 1 Brandishing Firearm Or Deadly Weapon: Misdemeanor – 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 982 [Brandishing Firearm Or Deadly Weapon to Resist Arrest]
CALCRIM 984 [Brandishing Firearm: Misdemeanor—Public Place]
CALCRIM 985 [Brandishing Imitation Firearm (PC 417.4)]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 985.4 Brandishing Imitation Firearm—Burden Of Proof Issues
F 985.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 985.5 Brandishing Imitation Firearm—Elements And Definitions
F 985.5 Inst 1 Real Appearance Of Imitation Firearm As Element Of The Offense
*Add to CC 985 as Element 5:
The imitation firearm was so substantially similar to a real firearm in color and overall appearance that a reasonable person would believe it was a real firearm.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—In the interest of clarity and precision, instructional definitions should be included in the language setting forth the element to which the definition corresponds. (See FORECITE F 417.5 Inst 2.)
The CALCRIM 985 definition, taken from PC 12550, includes specific reference to various items including a “BB device.” However, in most if not all cases whether or not the imitation firearm is a toy, replica, BB device or some other kind of device will likely be immaterial since the determinative issue is whether the device was sufficiently similar to a real firearm.
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 985.6 Brandishing Imitation Firearm—Defense Theories
F 985.6 Inst 1 Clarification Of Self-Defense
*Modify CC 985, Element 4, as follows [added language is underlined; deleted language is stricken]:
4. When the defendant drew or exhibited the imitation firearm, (he/she) was not acting [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.
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 985.7 Brandishing Imitation Firearm—Preliminary Fact Issues[Reserved]
F 985.8 Brandishing Imitation Firearm—Unanimity/Duplicity/Multiplicity [Reserved]
F 985.9 Brandishing Imitation Firearm—Lesser Offense Issues[Reserved]
F 985 NOTES
F 985 Note 1 Brandishing Imitation Firearm—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 982 [Brandishing Firearm Or Deadly Weapon to Resist Arrest]
CALCRIM 983 [Brandishing Firearm Or Deadly Weapon: Misdemeanor]
CALCRIM 984 [Brandishing Firearm: Misdemeanor—Public Place]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 985 Note 2 Brandishing Imitation Firearms: Instilling Fear In Bystander Sufficient (PC 417.4)
(See In re Michael D. (2002) 100 CA4th 115.)
CALJIC NOTE: See FORECITE F 16.292 n1.
F 985 Note 3 Self-Defense Generally
See FORECITE F 505 [Justifiable Homicide: Self-Defense or Defense of Another]; F 3470 [Right To Self-Defense Or Defense Of Another (Non-Homicide)].
F 985 Note 4 Self-Defense Available When Defendant Threatens To Use Force
See FORECITE F 505.6 Inst 5.
