CALCRIM No. 983. Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen. Code, § 417(a)(1) & (2))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
983.Brandishing Firearm or Deadly Weapon: Misdemeanor (Pen.
Code, § 417(a)(1) & (2))
The defendant is charged [in Count ] with brandishing a (firearm/
deadly weapon) [in violation of Penal Code section 417(a)].
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 presence of someone else;
[AND]
<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.>
[AND
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 one] that is used in such a way that it is capable of causing
and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[In deciding whether an object is a deadly weapon, consider all the
surrounding circumstances.]
[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.]
737
New January 2006; Revised October 2010, February 2012, February 2013,
September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an 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.
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
Give the bracketed portion that begins with “In deciding whether” if the object is
not a weapon as a matter of law and is capable of innocent uses. (People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]; People v.
Godwin (1996) 50 Cal.App.4th 1562, 1573-1574 [58 Cal.Rptr.2d 545].)
If determining whether the item is an inherently deadly weapon requires resolution
of a factual issue, give both bracketed instructions.
On request, give the bracketed sentence stating that the firearm need not be loaded.
AUTHORITY
• Elements. Pen. Code, § 417(a)(1) & (2).
• Firearm Defined. Pen. Code, § 16520.
• Deadly Weapon Defined. People v. Brown (2012) 210 Cal.App.4th 1, 6-8 [147
Cal.Rptr.3d 848]; 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].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
CALCRIM No. 983 ASSAULTIVE AND BATTERY CRIMES
738
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 4-7.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 983
739

© Judicial Council of California.