California Criminal Jury Instructions (CALCRIM) (2017)

980. Brandishing Firearm in Presence of Occupant of Motor Vehicle

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(ii) Brandishing
980.Brandishing Firearm in Presence of Occupant of Motor
Vehicle (Pen. Code, § 417.3)
The defendant is charged [in Count ] with brandishing a firearm
in the presence of someone in a motor vehicle [in violation of Penal
Code section 417.3].
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;
[AND]
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.>
[AND
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.]
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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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.)
Related Instructions
For misdemeanor brandishing instructions, see CALCRIM No. 983, Brandishing
Firearm or Deadly Weapon: Misdemeanor.
AUTHORITY
• 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, § 16520.
• 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)].
Secondary Sources
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[1][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].
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 980
695
0183