985. Brandishing Imitation Firearm
The defendant is charged [in Count ______] with brandishing an imitation firearm.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant drew or exhibited an imitation firearm in a threatening manner against another person;
2. The defendant's act caused someone to fear bodily harm to himself or herself or someone else;
3. That fear of harm was reasonable(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
4. When the defendant drew or exhibited the imitation firearm, (he/she) was not acting (in self-defense/ [or] in defense of someone else).]
An imitation firearm is a device[, or a toy gun, replica of a firearm, or BB device,] that is so substantially similar to a real firearm in color and overall appearance that a reasonable person would believe that it is a real firearm. [A BB device is an instrument that expels a projectile, such as a BB or other pellet, not exceeding 6 mm caliber, through the force of air pressure, gas pressure, or spring action, or any spot marker gun.]
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 4 and any appropriate defense instructions. (See CALCRIM Nos. 3470-3477.)
Elements. Pen. Code, § 417.4.
Imitation Firearm. Pen. Code, § 12550.
BB Device Defined. Pen. Code, § 12001.
Reasonable Person Must Be Placed in Fear. In re Michael D. (2002) 100 Cal.App.4th 115, 124 [121 Cal.Rptr.2d 909].
Person Placed in Fear May Be Bystander. In re Michael D. (2002) 100 Cal.App.4th 115, 120-123 [121 Cal.Rptr.2d 909].
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).
Reasonable Person Who Fears Harm May Be Bystander
Penal Code section 417.4 requires not "only the presence of another person against whom the imitation firearm is displayed or exhibited, but also some person's knowledge of, and a reaction to, the perpetrator's action." (In re Michael D. (2002) 100 Cal.App.4th 115, 124 [121 Cal.Rptr.2d 909].) Thus, someone must be placed in fear as a result of the defendant's conduct; however, this does not have to be the person against whom the object is exhibited. (Id. at pp. 120-123.) The term "reasonable person," as used in the statute "refers to anyone who witnesses the actions of the perpetrator, not just to the person against whom the device is drawn or exhibited." (Id. at p. 123.)
(New January 2006)