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F 16.290a
Brandishing Firearm: Definition of “Rude”
(PC 417)
*Add to CJ 16.290:
For purposes of this instruction, the term “rude” means rough, incivil, and violent.
Points and Authorities
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 (91) 53 C3d 753, 763 [280 CR 745]), 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.”
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Under this definition pointing or displaying a weapon in jest is not a violation of the statute. (See FORECITE F 16.290b for pinpoint instruction on this theory.
F 16.290b
Brandishing: Weapon Drawn In Jest
(PC 417)
*Add to CJ 16.290:
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
[See FORECITE F 9.21b.]
NOTES
The court recognized this theory in People v. Carpio UNPUBLISHED (E008819). [A copy of the Carpio opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-106.]
