980. Brandishing Firearm in Presence of Occupant of Motor Vehicle
The defendant is charged [in Count ______] with brandishing a firearm in the presence of someone in a motor vehicle.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drew or exhibited a firearm in the presence of another person who was in a motor vehicle that was being driven on a public street or highway;
2. The defendant drew or exhibited the firearm against the other person in a threatening manner that would cause a reasonable person to fear bodily harm(;/.)
<Give element 3 when instructing on self-defense or defense of another>
3. The defendant did not act (in self-defense/ [or] in defense of someone else).]
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/ <insert other type of motor vehicle>).]
[A motor vehicle is proceeding on a public street or highway if it is moving on a street or highway with its engine running and propelling the vehicle.]
[A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.]
[The term[s] (firearm/ <insert other term>) (is/are) defined in another instruction to which you should refer.]
[It is not required that the firearm be loaded.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
If there is sufficient evidence of self-defense or defense of another, the court has a sua sponte duty to instruct on the defense. Give bracketed element 3 and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
Give the relevant bracketed definitions unless the court has already given the definition in other instructions. In such cases, the court may give the bracketed sentence stating that the term is defined elsewhere.
Give the bracketed paragraph about the lack of any requirement that the firearm be loaded on request. (See Pen. Code, § 417.3.)
For misdemeanor brandishing instructions, see CALCRIM No. 983, Brandishing Firearm or Deadly Weapon: Misdemeanor.
Elements. Pen. Code, § 417.3; People v. Lara (1996) 43 Cal.App.4th 1560, 1565-1566 [51 Cal.Rptr.2d 349] [brandishing must be directed against occupant of vehicle].
Firearm Defined. Pen. Code, § 12001(b).
Motor Vehicle Defined. Veh. Code, §§ 415, 670.
Proceeding Defined. People v. Howard (2002) 100 Cal.App.4th 94, 97 [121 Cal.Rptr.2d 892].
Victim's Awareness of Firearm Not a Required Element. People v. McKinzie (1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891] [in context of misdemeanor brandishing under Pen. Code, § 417(a)].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 5.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.01[e] (Matthew Bender).
Lesser Included Offenses
Brandishing a Firearm. Pen. Code, § 417.3; People v. Howard (2002) 100 Cal.App.4th 94, 99 [121 Cal.Rptr.2d 892].
(New January 2006)