983. Brandishing Firearm or Deadly Weapon: Misdemeanor
The defendant is charged [in Count ______] with brandishing a (firearm/deadly weapon).
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) in the immediate presence of someone else;
<Alternative 2A—displayed in rude, angry, or threatening manner>
[2. The defendant did so in a rude, angry, or threatening manner(;/.)]
<Alternative 2B—used in fight>
[2. The defendant [unlawfully] used the (firearm/deadly weapon) in a fight or quarrel(;/.)]
<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 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.]
[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.)
If the prosecution alleges that the defendant displayed the weapon in a rude, angry, or threatening manner, give alternative 2A. If the prosecution alleges that the defendant used the weapon in a fight, give alternative 2B.
If the defendant is charged under Penal Code section 417(a)(2)(A), the court must also give CALCRIM No. 984, Brandishing Firearm: Misdemeanor—Public Place.
Give the bracketed definition of "firearm" or "deadly weapon" 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.
On request, give the bracketed sentence stating that the firearm need not be loaded.
Elements. Pen. Code, § 417(a)(1) & (2).
Firearm Defined. Pen. Code, § 12001(b).
Deadly Weapon Defined. People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
Victim's Awareness of Firearm Not a Required Element. People v. McKinzie (1986) 179 Cal.App.3d 789, 794 [224 Cal.Rptr. 891].
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].
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).
(New January 2006)