CALCRIM No. 982. Brandishing Firearm or Deadly Weapon to Resist Arrest (Pen. Code, § 417.8)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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982.Brandishing Firearm or Deadly Weapon to Resist Arrest
(Pen. Code, § 417.8)
The defendant is charged [in Count ] with brandishing a (firearm/
deadly weapon) to resist arrest or detention [in violation of Penal Code
section 417.8].
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);
AND
2. When the defendant drew or exhibited the (firearm/deadly
weapon), (he/she) intended to resist arrest or to prevent a peace
officer from arresting or detaining (him/her/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.]
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer
if <insert description of facts necessary to make employee a
peace offıcer, e.g., “designated by the director of the agency as a peace
offıcer”>.]
New January 2006; Revised February 2012, February 2013, September 2019
734
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the relevant bracketed definitions 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 paragraph about the lack of any requirement that the firearm be
loaded on request.
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.
The jury must determine whether the alleged victim is a peace officer. (People v.
Brown (1988) 46 Cal.3d 432, 444-445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The
court may instruct the jury on the appropriate definition of “peace officer” from the
statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve
Police Officer are peace officers”). (Ibid.) However, the court may not instruct the
jury that the alleged victim was a peace officer as a matter of law (e.g., “Officer
Reed was a peace officer”). (Ibid.) If the alleged victim is a police officer, give the
bracketed sentence that begins with “A person employed as a police officer.” If the
alleged victim is another type of peace officer, give the bracketed sentence that
begins with “A person employed by.”
Related Instructions
CALCRIM No. 983, Brandishing Firearm or Deadly Weapon: Misdemeanor.
CALCRIM No. 981, Brandishing Firearm in Presence of Peace Offıcer.
CALCRIM No. 2653, Taking Firearm or Weapon While Resisting Peace Offıcer or
Public Offıcer.
AUTHORITY
• Elements. Pen. Code, § 417.8.
• Firearm Defined. Pen. Code, § 16520; see In re Jose A. (1992) 5 Cal.App.4th
697, 702 [7 Cal.Rptr.2d 44] [pellet gun not a “firearm” within meaning of Pen.
Code, § 417(a)].
• Peace Officer Defined. Pen. Code, § 830 et seq.
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 982
735
• 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] [hands and feet not deadly weapons]; see, e.g.,
People v. Simons (1996) 42 Cal.App.4th 1100, 1107 [50 Cal.Rptr.2d 351]
[screwdriver was capable of being used as a deadly weapon and defendant
intended to use it as one if need be]; People v. Henderson (1999) 76 Cal.App.4th
453, 469-470 [90 Cal.Rptr.2d 450] [pit bulls were deadly weapons under the
circumstances].
• Lawful Performance of Duties Not an Element. People v. Simons (1996) 42
Cal.App.4th 1100, 1109-1110 [50 Cal.Rptr.2d 351].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
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].
LESSER INCLUDED OFFENSES
Resisting arrest by a peace officer engaged in the performance of his or her duties in
violation of Penal Code section 148(a) is not a lesser included offense of Penal
Code section 417.8. (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1110 [50
Cal.Rptr.2d 351].) Brandishing a deadly weapon in a rude, angry, or threatening
manner in violation of Penal Code section 417(a)(1) is also not a lesser included
offense of section 417.8. (People v. Pruett (1997) 57 Cal.App.4th 77, 88 [66
Cal.Rptr.2d 750].)
RELATED ISSUES
See the Related Issues section to CALCRIM No. 981, Brandishing Firearm in
Presence of Peace Offıcer.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 8-10.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[1][e] (Matthew Bender).
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