California Criminal Jury Instructions (CALCRIM) (2017)

981. Brandishing Firearm in Presence of Peace Officer

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981.Brandishing Firearm in Presence of Peace Officer (Pen.
Code, § 417(c) & (e))
The defendant is charged [in Count ] with brandishing a firearm
in the presence of a peace officer [in violation of Penal Code section
417].
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 immediate
presence of a peace officer;
2. The defendant drew or exhibited the firearm in a rude, angry, or
threatening manner;
3. When the defendant acted, the officer was lawfully performing
(his/her) duties;
[AND]
4. When the defendant acted, (he/she) knew, or reasonably should
have known, from the person’s uniform or other identifying
action[s] that the person was a peace officer who was performing
(his/her) duties(;/.)
<Give element 5 when instructing on self-defense or defense of another.>
[AND
5. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
[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 firearm is defined in another instruction to which you should
refer.]
[It is not required that the firearm be loaded.]
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace
officer if <insert description of facts necessary to make
employee a peace offıcer, e.g., “designated by the director of the agency as
a peace offıcer”>.]
[The duties of a <insert title of offıcer> include
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<insert job duties>.]
New January 2006; Revised April 2011, February 2012
BENCH NOTES
Instructional Duty
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 5 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
In addition, the court has a sua sponte duty to instruct on defendant’s reliance on
self-defense as it relates to the use of excessive force. (People v. White (1980) 101
Cal.App.3d 161, 167–168 [161 Cal.Rptr. 541].) If excessive force is an issue, the
court has a sua sponte duty to instruct the jury that the defendant is not guilty of
the offense charged, or any lesser included offense in which lawful performance is
an element, if the defendant used reasonable force in response to excessive force.
(People v. Olguin (1981) 119 Cal.App.3d 39, 46–47 [173 Cal.Rptr. 663].) On
request, the court must instruct that the prosecution has the burden of proving the
lawfulness of the arrest beyond a reasonable doubt. (People v. Castain (1981) 122
Cal.App.3d 138, 145 [175 Cal.Rptr. 651].) If lawful performance is an issue, give
the appropriate portions of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
Give the bracketed definition of “firearm” 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.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
The court may give the bracketed sentence that begins, “The duties of a
<insert title . . .> include,” on request. The court may insert a
description of the officer’s duties such as “the correct service of a facially valid
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search warrant.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1222 [275 Cal.Rptr.
729, 800 P.2d 1159].)
Related Instructions
For misdemeanor brandishing instructions, see CALCRIM No. 983, Brandishing
Firearm or Deadly Weapon: Misdemeanor.
AUTHORITY
• Elements. Pen. Code, § 417(c) & (e).
Firearm Defined. Pen. Code, § 16520; see In re Jose A. (1992) 5 Cal.App.4th
697, 702 [7 Cal.Rptr.2d 44] [pellet gun not a “firearm” within meaning of Pen.
Code, § 417(a)].
• Peace Officer Defined. Pen. Code, § 830 et seq.
• 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)].
• Weapon Need Not Be Pointed Directly at Victim. People v. Sanders (1995) 11
Cal.4th 475, 542 [46 Cal.Rptr.2d 751, 905 P.2d 420] [in context of Pen. Code,
§ 417(a)].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, §§ 6, 7.
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(a)(2).
RELATED ISSUES
Infliction of Serious Bodily Injury
It is a separate offense to intentionally inflict serious bodily injury while drawing or
exhibiting a firearm in the presence of a peace officer. (See Pen. Code, § 417.6(a);
see also Pen. Code, § 417.6(b) [defining “serious bodily injury”].)
Multiple Peace Officers
A “single act of exhibiting a firearm in the presence of a peace officer . . . cannot
be punished as many times as there are peace officers observing the act . . . . [T]he
multiple-victim exception [under Neal v. State of California (1960) 55 Cal.2d 11,
20–21 [9 Cal.Rptr. 607, 357 P.2d 839] for acts of violence against multiple victims]
is just that, a multiple-victim exception, not a multiple-observer exception.” (People
v. Hall (2000) 83 Cal.App.4th 1084, 1095–1096 [100 Cal.Rptr.2d 279].)
Reasonable Person Standard for Physically Disabled Defendant
A defendant with a physical disability is entitled to an instruction that the
reasonable person standard as used in this instruction means a person with the same
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physical disability. (People v. Mathews (1994) 25 Cal.App.4th 89, 99 [30
Cal.Rptr.2d 330]; see CALCRIM No. 3429, Reasonable Person Standard for
Physically Disabled Person.)
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