California Criminal Jury Instructions (CALCRIM) (2017)

985. Brandishing Imitation Firearm

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985.Brandishing Imitation Firearm (Pen. Code, § 417.4)
The defendant is charged [in Count ] with brandishing an
imitation firearm [in violation of Penal Code section 417.4].
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;
[AND]
3. That fear of harm was reasonable(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
[AND
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, either 6 millimeters or 8 millimeters in caliber,
through the force of air pressure, gas pressure, or spring action, or any
spot marker gun that expels a projectile 10 millimeters or less in
caliber.]
New January 2006; Revised February 2012, February 2016
BENCH NOTES
Instructional Duty
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.)
AUTHORITY
• Elements. Pen. Code, § 417.4.
Imitation Firearm. Pen. Code, § 16700.
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• BB Device Defined. Pen. Code, § 16250.
• 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 5.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][e], [h] (Matthew Bender).
RELATED ISSUES
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.)
986–999. Reserved for Future Use
CALCRIM No. 985 ASSAULTIVE AND BATTERY CRIMES
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