California Criminal Jury Instructions (CALCRIM) (2017)

984. Brandishing Firearm: Misdemeanor - Public Place

Download PDF
984.Brandishing Firearm: Misdemeanor—Public Place (Pen.
Code, § 417(a)(2)(A))
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 [in violation of Penal Code section
417(a)(2)(A)].
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;
AND
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.
New January 2006; Revised February 2012
BENCH NOTES
Instructional Duty
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.”
705
0193
AUTHORITY
• Elements. Pen. Code, § 417(a)(2)(A).
• Firearm Capable of Being Concealed Defined. Pen. Code, § 16530.
• 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”].
Secondary Sources
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[1][d], [e] (Matthew Bender).
CALCRIM No. 984 ASSAULTIVE AND BATTERY CRIMES
706
0194