Return to CALJIC Part 9-12 – Contents
F 9.07 n1 Exhibiting Firearm in Vehicle (PC 245(a)(2)/PC 417(a)(2)/PC 417.3).
For purposes of PC 245(a)(2) and PC 417(a)(2), a firearm is “any device designed to be used as a weapon from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.” (In re Jose A. (92) 5 CA4th 697, 700-01 [7 CR2d 44]; PC 12001(b).)
F 9.07 n2 Felony Brandishing — Defendant Need Not Be in Vehicle (PC 245(a)(2)/PC 417(a)(2)/PC 417.3).
To be liable for felony brandishing pursuant to PC 417.3, the defendant need not be an occupant of a motor vehicle. Neither the title nor the second numbered element of CJ 9.07 make this clear. (People v. Miller DEPUBLISHED (91) 2 CA4th 64 [2 CR2d 838].) [A copy of this opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-116.]
NOTE: Miller observed that there are actually three persons referred to in PC 417.3: (1) the person committing the offense; (2) the person in whose presence the brandishing occurs; and (3) the “another person” (the victim). Miller notes that it is unclear whether the victim and the person satisfying the presence requirement can or must be the same person and if the victim can be a separate person whether the victim must be in a motor vehicle. However, as Miller notes the legislative history indicates a concern with firearms being brandished at occupants of vehicles. Hence, the jury should be so instructed. (See FORECITE CHK IV, “Rules of Statutory Construction”.)
F 9.07 n3 Brandishing — Definition of “Rude” (PC 245(a)(2)/PC 417(a)(2)/PC 417.3).
See FORECITE F 16.290a.
F 9.07 n4 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 (32) 128 CA 105, 107-08 [16 P2d 752]; People v. Graham (69) 71 C2d 303, 327-28 [78 CR 217].) 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 (97) 57 CA4th 77, 85-86 [66 CR2d 750].) When the instrument employed is one which lay people can readily determine to be capable of causing death, no special definition is required. (Ibid.)
F 9.07 n5 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 9.07 omitted the requirement that the “victim” be an occupant of a motor vehicle. (See CALJIC History CJ 9.07.)
F 9.07 n6 BrandishingA Firearm At A Vehicle Proceeding On A Street: Inapplicable To Inoperative Vehicle (PC 417.3).
The requirement of PC 417.3 that the vehicle be proceeding on a public street precludes a conviction where the vehicle is stopped, inoperative, and incapable of moving in any manner. (People v. Howard (2002) 100 CA4th 94 [121 CR2d 892].)
F 9.07 n7 Brandishing — PC 417(b) Violation Must Occur At Daycare Facility.
PC 417(b) prohibits the drawing or exhibiting of any loaded firearm in a rude, angry, or threatening manner, or, in any manner, unlawfully using any loaded firearm in any fight or quarrel upon the grounds of any day care center (as defined in HS 1596.76), or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use.
In People v. Rivera (2003) 114 CA4th 872, the prosecution convinced the trial court that PC 417(b) provided for two different types of offenses, only one of which had to be performed at a daycare. Rivera held that, although the plain language of the statute is susceptible of two interpretations, both of the types of offenses contemplated under PC 417(b) have to occur at a daycare. Interpreting the statute as the trial court did would have allowed the defendant to have been convicted for either a misdemeanor under PC 417(a) or a felony under PC 417(b) for the same conduct. The Rivera court’s interpretation was supported by the legislative history, which indicated an intent to increase the penalty for brandishing a firearm on the grounds of a day care center from a misdemeanor to a “wobbler.“
F 9.07a
Drawing Or Exhibiting Firearm In Presence Of Motor Vehicle Occupant
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC Sixth Edition, CJ 9.07 was amended to adopt the language of FORECITE F 9.07a requiring that the exhibiting be against the occupant of the vehicle.
*Modify ¶ 2 of CJ 9.07 to provide as follows [added language is capitalized; deleted language is stricken]:
Every person who [except in self-defense,] in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against <<another person>> THE OCCUPANT OF THE VEHICLE in such a way as to cause a reasonable person apprehension or fear of bodily harm, is guilty of a violation of Penal Code Section 417.3, a crime.
*Modify element 3 of CJ 9.07 to provide as follows [added language is capitalized; deleted language is stricken]:
3. The drawing, or exhibiting was done in a threatening manner <<[against [another] [a third] person]>> AGAINST THE OCCUPANT OF THE VEHICLE in such a way as to cause a reasonable person to be placed in apprehension or fear of bodily injury.
Points and Authorities
As recognized in FORECITE F 9.07 n2, CJ 9.07 should specify that the brandishing of the firearm per PC 417.3 should be against the occupant of the vehicle. As stated by the court in People v. Lara (96) 43 CA4th 1560, 1567 [51 CR2d 349], “the Legislature and the CALJIC committee would have been better advised to clearly specify that the threatening manner of the exhibiting be against the occupant of the vehicle, and not “against another person.” [Original emphasis.] (Lara, 43 CA4th at 1567.) Accordingly, ¶ 2 and element 3 of CJ 9.07 should be modified as set forth above.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]