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F 9.21 n1 Brandishing Firearm: “Reasonably Should Know” Standard Requires Consideration Of Physical Disabilities (PC 417).
The defendant has the right to an instruction that the “reasonably should know” requirement should be evaluated in light of the defendant’s physical disabilities. (People v. Mathews (94) 25 CA4th 89, 99 [30 CR2d 330].)
Brandishing Firearm: Definition of “Rude”
*Add to CJ 9.21:
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).]
Under this definition pointing or displaying a weapon in jest is not a violation of the statute. (See FORECITE F 9.21b.)
Brandishing: Weapon Drawn In Jest
*Add to CJ 9.21:
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
The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (80) 28 C3d 143, 159 [167 CR 844]; People v. Sears (70) 2 C3d 180, 190 [84 CR 711].) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see also, People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [pinpoint instruction proper if it is predicated upon defendant’s theory].)
Examples of such instructions are CJ 2.91 (eyewitness testimony), CJ 4.30 (unconsciousness), CJ 4.50 (alibi) and CJ 4.21 (intoxication). The instruction proposed in the present case relates defendant’s evidentiary theory — that he drew the weapon in jest — to the statutory requirement that the gun be drawn in a rude, angry or threatening manner. (See People v. Sica (26) 76 CA 648, 653 [245 P 461].)
Because the proposed instruction is the proper subject of a pinpoint instruction, and because it follows the judicially approved form for such instructions (i.e., CJ 4.30 and CJ 4.50 should be given as requested.
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves the jury with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
See also People v. Carpio UNPUBLISHED (E008819).) [A copy of the Carpio opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-106.]