984. Brandishing Firearm: Misdemeanor - Public Place
If you find the defendant guilty of brandishing a firearm, you must then decide whether the People have proved the additional allegation that the defendant brandished a firearm that was capable of being concealed on the person while in a public place.
To prove this allegation, the People must prove that:
1. The defendant drew or exhibited a firearm that was capable of being concealed on the person;
2. When the defendant did so, (he/she) was (in a public place in an incorporated city/ [or] on a public street).
A firearm capable of being concealed on the person is a firearm that has a barrel less than 16 inches in length. [A firearm capable of being concealed on the person also includes any device that has a barrel 16 inches or more in length that is designed to be interchanged with a barrel less than 16 inches in length.]
[As used here, a public place is a place that is open and accessible to anyone who wishes to go there.]
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
If the defendant is charged under Penal Code section 417(a)(2)(A), the court has a sua sponte duty to instruct on this sentencing factor.
This instruction must be given with CALCRIM No. 983, Brandishing Firearm or Deadly Weapon: Misdemeanor.
The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has or has not been proved this allegation.
Penal Code section 417(a)(2)(A) applies to a firearm that "is a pistol, revolver, or other firearm capable of being concealed upon the person."
Penal Code section 12001(a)(1) provides a single definition for this class of weapons. Thus, the committee has chosen to use solely the all-inclusive phrase "firearm capable of being concealed on the person."
Elements. Pen. Code, § 417(a)(2)(A).
Firearm Capable of Being Concealed Defined. Pen. Code, § 12001(a)(1).
Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811, 381 P.2d 635]; People v. Belanger (1966) 243 Cal.App.2d 654, 657 [52 Cal.Rptr. 660]; People v. Perez (1976) 64 Cal.App.3d 297, 300-301 [134 Cal.Rptr. 338]; but see People v. White (1991) 227 Cal.App.3d 886, 892-893 [278 Cal.Rptr. 48] [fenced yard of defendant's home not a "public place"].
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[d], [e] (Matthew Bender).
(New January 2006)