982. Brandishing Firearm or Deadly Weapon to Resist Arrest
The defendant is charged [in Count ______] with brandishing a (firearm/deadly weapon) to resist arrest or detention.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drew or exhibited a (firearm/deadly weapon);
2. When the defendant drew or exhibited the (firearm/deadly weapon), (he/she) intended to resist arrest or to prevent a peace officer from arresting or detaining (him/her/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.]
[A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.] [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[The term[s] (firearm[,]/ deadly weapon[,]/ [and] great bodily injury) (is/are) defined in another instruction to which you should refer.]
[A person who is employed as a police officer by <insert name of agency that employs police officer> is a peace officer.]
[A person employed by <insert name of agency that employs peace officer, e.g., "the Department of Fish and Game"> is a peace officer if <insert description of facts necessary to make employee a peace officer, e.g., "designated by the director of the agency as a peace officer">.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
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.
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."
CALCRIM No. 983, Brandishing Firearm or Deadly Weapon: Misdemeanor.
CALCRIM No. 981, Brandishing Firearm in Presence of Peace Officer.
CALCRIM No. 2653, Taking Firearm or Weapon While Resisting Peace Officer or Public Officer.
Elements. Pen. Code, § 417.8.
Firearm Defined. Pen. Code, § 12001(b); 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.
Deadly Weapon Defined. People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204] [hands and feet not deadly weapons]; see, e.g., People v. Simons (1996) 42 Cal.App.4th 1100, 1107 [50 Cal.Rptr.2d 351] [screwdriver was capable of being used as a deadly weapon and defendant intended to use it as one if need be]; People v. Henderson (1999) 76 Cal.App.4th 453, 469-470 [90 Cal.Rptr.2d 450] [pit bulls were deadly weapons under the circumstances].
Lawful Performance of Duties Not an Element. People v. Simons (1996) 42 Cal.App.4th 1100, 1109-1110 [50 Cal.Rptr.2d 351].
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[e] (Matthew Bender).
Lesser Included Offenses
Resisting arrest by a peace officer engaged in the performance of his or her duties in violation of Penal Code section 148(a) is not a lesser included offense of Penal Code section 417.8. (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1110 [50 Cal.Rptr.2d 351].) Brandishing a deadly weapon in a rude, angry, or threatening manner in violation of Penal Code section 417(a)(1) is also not a lesser included offense of section 417.8. (People v. Pruett (1997) 57 Cal.App.4th 77, 88 [66 Cal.Rptr.2d 750].)
See the Related Issues section to CALCRIM No. 981, Brandishing Firearm in Presence of Peace Officer.
(New January 2006)