SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 980 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle (PC 417.3)
TABLE OF CONTENTS
F 980.1 Titles And Identification Of Parties
F 980.1 Inst 1 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Title
F 980.1 Inst 2 Identification Of Prosecution And Defendant
F 980.2 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 980.2 Inst 1 Separate Enumeration Of Elements; Tailoring To Facts
F 980.3 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Language That Is Argumentative, Confusing, Etc.
F 980.3 Inst 1 Specification Of Cross-Referenced Instruction
F 980.4 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Burden Of Proof Issues
F 980.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 980.5 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Elements And Definitions
F 980.5 Inst 1 Clarification Of Driving Element
F 980.5 Inst 2 Brandishing: “Immediate” Presence Requirement
F 980.6 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Defense Theories
F 980.6 Inst 1 Clarification Of Self-Defense
F 980.7 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Preliminary Fact Issues [Reserved]
F 980.8 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Unanimity/ Duplicity/Multiplicity [Reserved]
F 980.9 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Lesser Offense Issues [Reserved]
F 980 NOTES
F 980 Note 1 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—CALCRIM Cross-References And Research Notes
F 980 Note 2 LIO Note
F 980 Note 3 Brandishing A Firearm At A Vehicle Proceeding On A Street: Inapplicable To Inoperative Vehicle (PC 417.3)
Return to Series 900 Table of Contents.
F 980.1 Titles And Identification Of Parties
F 980.1 Inst 1 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 980.1 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 980.2 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 980.2 Inst 1 Separate Enumeration Of Elements; Tailoring To Facts
*Modify CC 980, Elements 1 and 2, as follows [added language is underlined; deleted language is stricken]:
1. The defendant drew or exhibited a firearm in the presence of another person who was ________ <name of victim>;
2. The defendant did so while:
A. ________ <name of victim> was in a motor vehicle that _____________ <description of alleged motor vehicle>;
AND
B. _____________ <description of alleged motor vehicle> was being driven on a public street or highway _____________ <name or description of street or highway> ;
[AND]
2. The defendant drew or exhibited the firearm against the other person ________ <name of victim> in a threatening manner that would have caused a reasonable person in ________’s <name of victim> situation to fear bodily harm(;/.)
[AND
3. The defendant did not act draw or exhibit the [firearm] [handgun] [rifle] _______________<description of firearm> (in [either] self-defense/ [or] in defense of someone else).]
Points and Authorities
Separate Enumeration Of Elements—See FORECITE F 3500.2 Inst 1; see also CJ 9.07.
Tailoring To Facts—The defendant should have notice of, and the prosecution should be required to prove, the specific facts upon which it is relying: e.g., the victim, the motor vehicle, the firearm, etc. (See FORECITE F 400.2 Inst 1.)
“AND” After Every Element—See FORECITE F 400.4 Inst 1.
Modification Of Self-Defense Element—See FORECITE F 980.6 Inst 1.
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 980.3 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Language That Is Argumentative, Confusing, Etc.
F 980.3 Inst 1 Specification Of Cross-Referenced Instruction
*Modify CC 980, paragraph 6, as follows [added language is underlined; deleted language is stricken]:
[The term[s] (firearm/ _________ <insert other term>) (is/are) defined in another Instruction(s)______ to which you should refer must apply to this instruction.]
Points and Authorities
See FORECITE F 524.3 Inst 2.
F 980.4 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Burden Of Proof Issues
F 980.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 980.5 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Elements And Definitions
F 980.5 Inst 1 Clarification Of Driving Element
*Modify CC 980, Element 1, as follows:
… that was being driven proceeding on a public street or highway;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 980 uses the term “being driven” rather than the statutory term “proceeding.” Furthermore, the definitions in CC 980 do include “proceeding” but not “being driven.”
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 980.5 Inst 2 Brandishing: “Immediate” Presence Requirement
*Modify CC 980, Element 1, as follows [added language is underlined]:
1. The defendant drew or exhibited a firearm in the immediate presence of another person …
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Although PC 417.3 does not use the term “immediate” presence, the related provision of PC 417(c) does. Therefore, since these statutes should be construed together (see FORECITE F 357 Inst 6), PC 417.3 should be defined in terms of “immediate” presence. (See also CC 983, Element 1, [“immediate” presence used for PC 417(a)(1) and PC 417(a)(2) which do not use “immediate” presence language].)
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 980.6 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Defense Theories
F 980.6 Inst 1 Clarification Of Self-Defense
*Modify CC 980, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. The defendant did not act draw or exhibit the firearm [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.
Draw Or Exhibit—This language is needed to correlate the self-defense with the brandishing. (Compare CC 982, Element 2, CC 985, Element 4; see also FORECITE F 251 Inst 3.)
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 980.7 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Preliminary Fact Issues [Reserved]
F 980.8 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Unanimity/ Duplicity/Multiplicity [Reserved]
F 980.9 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—Lesser Offense Issues [Reserved]
F 980 NOTES
F 980 Note 1 Brandishing Firearm In Presence Of Occupant Of Motor Vehicle—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
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]
CALCRIM 985 [Brandishing Imitation Firearm]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 980 Note 2 LIO Note
The Notes to CALCRIM 980 lists brandishing a firearm per PC 417.3 as a lesser-included offense of brandishing in presence of a motor vehicle occupant. However, the correct code section for the brandishing lesser should be PC 417(a)(2).
F 980 Note 3 Brandishing A 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.)
CALJIC NOTE: See FORECITE F 9.07 n6.
