Brandishing

Statute

(a) (1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.

(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.

(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer’s uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years.

(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.

(e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(f) As used in this section, “public place” means any of the following:

(1) A public place in an incorporated city.

(2) A public street in an incorporated city.

(3) A public street in an unincorporated area.

Weapon need not be directly pointed at victim

People v. Sanders (1995) 11 Cal.4th 475, 542, citing People v. Mercer (1980) 113 Cal.App.3d 803.

Notes of Decision

Validity  As used to impose criminal liability for exhibiting firearm in presence of peace officer, constructive knowledge, as opposed to actual knowledge, of peace officer's status does not offend Eighth and Fourteenth Amendments to United States Constitution;  culpability based on “should have known” constructive knowledge standard is not vague or overbroad.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Constitutional Law Key Number 1132(65);  Constitutional Law Key Number 1143(26);  Constitutional Law Key Number 4509(25);  Weapons Key Number 106(1)

Due process was not violated by fact that defendant could be convicted of exhibiting firearm in presence of peace officer based on whether he “reasonably should know” that victim was peace officer, since there was no constitutional impediment to enactment of law which required something less than actual knowledge in mind of perpetrator.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Constitutional Law Key Number 4509(25);  Weapons Key Number 106(4)

Go to table of contents - Validity Go to table of contents 2.Construction with federal law  2.Construction with federal law  Heck doctrine did not bar suspect's § 1983 claim alleging excessive force against county and police officer arising out of officer's actions in shooting at him while he was retreating into his apartment and allegedly posed no threat of harm to officers, based on suspect's misdemeanor conviction, upon no contest plea, for drawing or exhibiting a deadly weapon, other than a firearm, in a rude, angry, or threatening manner in connection with the incident involving the officer; § 1983 claim did not necessarily imply the invalidity of suspect's conviction, as defendants had identified nothing in the record that showed specific factual basis for suspect's misdemeanor conviction, and without such information, it could not be determined that claim of excessive force would call into question the validity of the misdemeanor weapon conviction.  Reese v. County of Sacramento, C.A.9 (Cal.)2018, 888 F.3d 1030.  Civil Rights Key Number 1088(4)

While California firearms statute under which alien was convicted authorized maximum sentence of only six months, and while alien received two-year sentence only because he admitted the special allegation that his offense was gang-related, because this special allegation related to specific characteristics of offense, alien was convicted of offense “for which the term of imprisonment was at least one year,” as required for firearms offense to qualify as “aggravated felony” and to support alien's removal.  Gonzalez-Leyton v. Holder, C.A.92012, 495 Fed.Appx. 771, 2012 WL 5350727, Unreported, on remand 2013 WL 4924893.  Aliens, Immigration, And Citizenship Key Number 282(2)

Go to table of contents - Construction with federal law Go to table of contents 3.Construction with other laws  3.Construction with other laws  Treating defendant's prior felony offense of brandishing a hammer with hate crime enhancement as a prior serious felony and a prior strike for purposes of sentence enhancement, based on a finding that defendant personally used a dangerous or deadly weapon, did not result in improper “bootstrapping” of multiple statutory provisions to increase defendant's punishment for the same conduct, since the conduct that made the prior conviction a felony was interfering with the victim's civil rights, which was different from the personal use of a dangerous or deadly weapon which made that felony a serious felony.  People v. Morgan (App. 4 Dist. 2011) 122 Cal.Rptr.3d 865, 194 Cal.App.4th 79, review denied.  Sentencing and Punishment Key Number 1260

Defendant's prior felony offense of brandishing a hammer with hate crime enhancement was an offense in which defendant personally used a dangerous or deadly weapon, and thus the offense was a prior serious felony and a prior strike for purposes of sentence enhancement, even though defendant did not specifically plead guilty to or admit a personal use allegation, where the preliminary hearing transcript for defendant's prior conviction established that he stood about nine feet away from the victim, held a hammer in one hand while hitting it with his other hand, and caused the victim to fear that defendant would hit him.  People v. Morgan (App. 4 Dist. 2011) 122 Cal.Rptr.3d 865, 194 Cal.App.4th 79, review denied.  Sentencing and Punishment Key Number 1260

Under hate crime enhancement statute, defendant's act of brandishing a hammer for the purpose of interfering with the victim's civil rights transformed a misdemeanor brandishing offense into a felony.  People v. Morgan (App. 4 Dist. 2011) 122 Cal.Rptr.3d 865, 194 Cal.App.4th 79, review denied.  Sentencing and Punishment Key Number 70

Go to table of contents - Construction with other laws Go to table of contents 4.Double jeopardy  4.Double jeopardy  Single act of brandishing deadly weapon in presence of others, even if witnessed by more than one person, could support only one conviction.  In re Peter F. (App. 4 Dist. 2005) 34 Cal.Rptr.3d 52, 132 Cal.App.4th 877.  Criminal Law Key Number 29(15)

Defendant's acts of displaying shotgun, firing it and injuring victim were all in legal effect one act for which there could be but one punishment;  accordingly, since defendant was sentenced, albeit concurrently, on three separate convictions, viz., assault with a deadly weapon, battery, and exhibiting a shotgun in a threatening manner, two of those sentences had to be vacated.  People v. Fuller (App. 2 Dist. 1975) 125 Cal.Rptr. 837, 53 Cal.App.3d 417.  Sentencing And Punishment Key Number 539

Prosecution for possession of a concealable weapon by person convicted of felony was not barred by prohibition against double jeopardy as result of prosecution for exhibiting firearm in threatening manner, since neither of these offenses was necessarily included within the other.  Kellett v. Superior Court of Sacramento County (1966) 48 Cal.Rptr. 366, 63 Cal.2d 822, 409 P.2d 206.  Double Jeopardy Key Number 140

The offense of exhibiting firearm in rude, angry and threatening manner in violation of this section and the offense of resisting a public officer in violation of § 148 were not based on the “same act” within provision of § 654 that acquittal or conviction and sentence under either one of two penal statutes bars prosecution for the same act.  People v. Wilson (App. 1 Dist. 1964) 37 Cal.Rptr. 42, 224 Cal.App.2d 738.  Double Jeopardy Key Number 140

The offense of exhibiting firearm in rude, angry and threatening manner in violation of this section was not an offense “necessarily included” in the offense of resisting a public officer in violation of § 148 within § 1023 providing that conviction, acquittal or jeopardy is bar to another prosecution for necessarily included offense.  People v. Wilson (App. 1 Dist. 1964) 37 Cal.Rptr. 42, 224 Cal.App.2d 738.  Double Jeopardy Key Number 164

Failure to remove jeopardy-barred assault counts from indictment on retrial on charges including second-degree murder gave rise to reliable inference of prejudice, where state relied heavily on conduct forming basis of assault charges to establish malice distinguishing murder from manslaughter, and in absence of evidence of assault would have been required to rely solely on defendant's brandishing of deadly weapon to establish malice; state argued that malice could be implied from defendant's participation in escalating criminal “rampage” forming basis of the assault charges, which were barred by double jeopardy.  Damian v. Vaughn, C.A.9 (Cal.)2006, 186 Fed.Appx. 775, 2006 WL 1750009, Unreported.  Habeas Corpus Key Number 466

Go to table of contents - Double jeopardy Go to table of contents 5.Legislative intent  5.Legislative intent  Also listed as Purpose 

Chief evil to be avoided by statutes criminalizing the exhibition of weapons is the potential for further violence.  People v. Hall (App. 3 Dist. 2000) 100 Cal.Rptr.2d 279, 83 Cal.App.4th 1084, as modified, review denied.  Weapons Key Number 187

Go to table of contents - Legislative intent Go to table of contents 5.Purpose  5.Purpose  See Legislative intent

6-9.Elements of offense  6-9.Elements of offense  6.Elements of offense - In general  6.Elements of offense - In general  Crime of brandishing consists of drawing or exhibiting, in the presence of another person, any firearm, whether loaded or unloaded, in a rude, angry or threatening manner;  weapon need not have been pointed directly at a victim.  People v. Sanders (1995) 46 Cal.Rptr.2d 751, 11 Cal.4th 475, 12 Cal.4th 783C, 905 P.2d 420, modified on denial of rehearing, certiorari denied 117 S.Ct. 115, 519 U.S. 838, 136 L.Ed.2d 66.  Weapons Key Number 187

Rule of tort law, under which amount of caution required of person whose physical faculties are impaired is that required of reasonable person with similar physical disability, may be utilized as theory of defense to criminal charge of exhibiting firearm in presence of peace officer.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Weapons Key Number 199

The pointing of the weapon at complaining witness is not a necessary element of the offense of exhibiting a deadly weapon in a rude, angry, or threatening manner.  Garfield v. Peoples Finance & Thrift Co. of Riverside (App. 4 Dist. 1937) 24 Cal.App.2d 144, 74 P.2d 1061.  Weapons Key Number 187

Go to table of contents - Elements of offense - In general Go to table of contents 7.Elements of offense - Firearms  7.Elements of offense - Firearms  Also listed as Firearms, elements of offense 

Brandishing a weapon may be committed by drawing or exhibiting a weapon in a rude, angry, or threatening manner.  People v. Booker (2011) 119 Cal.Rptr.3d 722, 51 Cal.4th 141, 245 P.3d 366, rehearing denied, certiorari denied 132 S.Ct. 455, 565 U.S. 964, 181 L.Ed.2d 297.  Weapons Key Number 187

A weapon need not be pointed at the victim to be “threatening,” as would support the offense of brandishing a weapon.  People v. Booker (2011) 119 Cal.Rptr.3d 722, 51 Cal.4th 141, 245 P.3d 366, rehearing denied, certiorari denied 132 S.Ct. 455, 565 U.S. 964, 181 L.Ed.2d 297.  Weapons Key Number 187

Defendant could not be convicted of assault with firearm and unlawfully exhibiting firearm in angry manner, where weapon defendant used was pellet gun that operated by use of compressed air, rather than by explosion or other form of combustion.  In re Jose A. (App. 4 Dist. 1992) 7 Cal.Rptr.2d 44, 5 Cal.App.4th 697.  Assault And Battery Key Number 136(1);  Weapons Key Number 187

“Firearm” is instrument used in propulsion of shot, shell, or bullets by action of gunpowder exploded within it.  In re Jose A. (App. 4 Dist. 1992) 7 Cal.Rptr.2d 44, 5 Cal.App.4th 697.  Assault And Battery Key Number 136(1)

Legislature's failure to define “firearm” in Titles 8 and 11 of Penal Code, governing crimes against the person and crimes against the public peace, respectively, while expressly including pellet gun in its definition of firearm for purpose of statute making sale of firearm to minor misdemeanor, raised strong inference that “firearm” was intended to be used for purposes of gun control and minors in sense different from its common meaning.  In re Jose A. (App. 4 Dist. 1992) 7 Cal.Rptr.2d 44, 5 Cal.App.4th 697.  Assault And Battery Key Number 136(1)

In respect to the offense of brandishing a firearm, the word “firearm” includes a pistol, revolver or rifle, or any other device designed to be used as a weapon from which a projectile may be expelled by the force of any explosion or other form of combustion;  an object which meets this definition is a “firearm” even if it is not loaded.  People v. Norton (Super. 1978) 146 Cal.Rptr. 343, 80 Cal.App.3d Supp. 14.  Weapons Key Number 112(1);  Weapons Key Number 187

Go to table of contents - Elements of offense - Firearms Go to table of contents 7.Firearms, elements of offense  7.Firearms, elements of offense  See Elements of offense - Firearms

8.Elements of offense - Victim's awareness  8.Elements of offense - Victim's awareness  Also listed as Victim's awareness, elements of offense 

Violation of statute regarding brandishing of weapon, West's Ann.Cal.Penal Code § 417(a)(2), did not require awareness on victim's part that gun was being brandished.  People v. McKinzie (App. 4 Dist. 1986) 224 Cal.Rptr. 891, 179 Cal.App.3d 789, review denied.  Weapons Key Number 187

All elements required for conviction of crime of displaying firearm in rude and boisterous manner were present where record clearly showed that weapon was seen by victims, was pointed at them, and was fired.  People v. Chavira (App. 2 Dist. 1970) 83 Cal.Rptr. 851, 3 Cal.App.3d 988.  Weapons Key Number 187

Go to table of contents - Elements of offense - Victim's awareness Go to table of contents 8.Victim's awareness, elements of offense  8.Victim's awareness, elements of offense  See Elements of offense - Victim's awareness

9.Elements of offense - Intent  9.Elements of offense - Intent  Also listed as Intent, elements of offense 

Crime of exhibiting a firearm in a threatening manner in the immediate presence of a peace officer does not require, as a matter of the crime's definition, an intent to harm, or a likelihood of harming, any person; instead, it is a general intent crime that does not require an intent beyond that to do the proscribed act, and when the evidence shows the weapon was exhibited in a rude, angry, or threatening manner, the offense is complete.  People v. Hall (App. 3 Dist. 2000) 100 Cal.Rptr.2d 279, 83 Cal.App.4th 1084, as modified, review denied.  Weapons Key Number 187

Defendant charged with assault with firearm was not entitled to instruction on lesser related offense of brandishing weapon as there was no basis on which jury could have found offense to be less than that charged;  victim, having heard gun shots, went from his back yard to his garage, intending to close garage door, defendant ran into garage with gun in hand, pointed it at victim, ordered victim into house, and warned victim that he “didn't want to have to shoot,” and defendant's statement that he “didn't want to have to shoot” did not demonstrate that he never intended to commit battery and, thus, could not have been guilty of assault.  People v. Lipscomb (App. 1 Dist. 1993) 21 Cal.Rptr.2d 445, 17 Cal.App.4th 564, rehearing denied, review denied.  Criminal Law Key Number 795(2.30)

Sufficient evidence supported defendant's conviction of brandishing a weapon, under West's Ann.Cal.Penal Code § 417(a)(2), where defendant was shown to have intentionally possessed weapon, regardless of whether firing of weapon was intentional.  People v. McKinzie (App. 4 Dist. 1986) 224 Cal.Rptr. 891, 179 Cal.App.3d 789, review denied.  Weapons Key Number 292

As regards the offense to brandishing a firearm or deadly weapon, it is not necessary to show that the possessor intended to inflict injury on a victim;  once it is shown that the weapon was exhibited in a rude, angry and threatening manner, the offense is complete and special instructions about the probable future use of the weapon would be irrelevant.  People v. Norton (Super. 1978) 146 Cal.Rptr. 343, 80 Cal.App.3d Supp. 14.  Weapons Key Number 187

Go to table of contents - Elements of offense - Intent Go to table of contents 9.Intent, elements of offense  9.Intent, elements of offense  See Elements of offense - Intent

10.Defense of others  10.Defense of others  Subdivision (a)(2) of this section does not forbid a person from drawing a weapon in a threatening manner in order to defend others.  People v. Kirk (Super. 1986) 238 Cal.Rptr. 42, 192 Cal.App.3d Supp. 15.

Go to table of contents - Defense of others Go to table of contents 10.5.Defense of property  10.5.Defense of property  Even assuming that defendant's neighbors failed to comply with homeowners' association rules, or with the Good Neighbor Fence Act, in hiring contractor to replace fence that separated the two properties, defendant, in order to defend fence from removal by contractor's employees, was not justified in brandishing a shotgun from his window and pointing it at neighbors and at contractor's employees; defense of property was not valid justification for threatening deadly force against third parties who were not invading defendant's home or threatening him or his family with any serious harm.  People v. Yi Chih Chen (App. 4 Dist. 2020) 264 Cal.Rptr.3d 570.  Homicide Key Number 920

Go to table of contents - Defense of property Go to table of contents 11.Murder or manslaughter  11.Murder or manslaughter  A homicide is excusable when a defendant accidentally kills while brandishing a weapon in self-defense, if the defendant acted with usual and ordinary caution.  People v. Villanueva (App. 2 Dist. 2008) 86 Cal.Rptr.3d 534, 169 Cal.App.4th 41.  Homicide Key Number 762

Killing was not killing while in commission of unlawful act, where gun was not pointed at deceased in “anger”.  People v. Sica (App. 1 Dist. 1926) 76 Cal.App. 648, 245 P. 461.

A defendant who had pointed a pistol at deceased in effort to eject deceased from his house, without intention of firing the pistol, and who fired the pistol accidentally and unintentionally was not guilty of murder, as the defendant in pointing the pistol at deceased was guilty merely of a misdemeanor, and not a felony, under this section.  People v. Hubbard (App. 2 Dist. 1923) 64 Cal.App. 27, 220 P. 315.  Homicide Key Number 609

Go to table of contents - Murder or manslaughter Go to table of contents 12.Aliens and immigrants  12.Aliens and immigrants  Alien's nolo contendere plea to conjunctively-charged information established only the minimal facts necessary to sustain a conviction, i.e., his violation of California firearms statute that authorized maximum sentence of only six months, so that immigration judge, in applying modified categorical approach to determine whether state court conviction qualified as “aggravated felony” supporting alien's removal, should not have looked beyond plea to find that alien was removable.  Gonzalez-Leyton v. Holder, C.A.92012, 495 Fed.Appx. 771, 2012 WL 5350727, Unreported, on remand 2013 WL 4924893.  Aliens, Immigration, And Citizenship Key Number 278

Go to table of contents - Aliens and immigrants Go to table of contents 13.Lesser and included offenses  13.Lesser and included offenses  Brandishing a weapon is a lesser-included offense of exhibiting a firearm in the presence of an occupant of a proceeding motor vehicle.  People v. Howard (App. 2 Dist. 2002) 121 Cal.Rptr.2d 892, 100 Cal.App.4th 94.  Indictments And Charging Instruments Key Number 836

That offenses of disturbing the peace and brandishing a firearm, to which defendants pleaded guilty as lesser included offenses of attempted robbery, assault with a deadly weapon, and misdemeanor of assault and battery, were not actually lesser included offenses of those charged was irrelevant, as the charges were supported by a factual basis in trial record and they were undoubtedly within range of evidence adduced at preliminary hearing.  People v. Tran (App. 4 Dist. 1984) 199 Cal.Rptr. 539, 152 Cal.App.3d 680.  Criminal Law Key Number 273(3)

The offense of brandishing a weapon is not a lesser included offense of murder, with or without the use of a firearm, nor of assault with a deadly weapon or assault with intent to commit murder.  People v. Beach (App. 2 Dist. 1983) 195 Cal.Rptr. 381, 147 Cal.App.3d 612.  Indictments And Charging Instruments Key Number 838

Drawing or exhibiting a firearm was not a necessarily included offense within charged offense of assault with a deadly weapon where the pleading charged the assault in a general matter without alleging that a weapon was “drawn or exhibited” in a rude, angry or threatening manner.  People v. Orr (App. 3 Dist. 1974) 117 Cal.Rptr. 738, 43 Cal.App.3d 666.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

Offense of exhibiting a deadly weapon is not an offense lesser than and included within a charge of assault with a deadly weapon.  People v. Escarcega (App. 1 Dist. 1974) 117 Cal.Rptr. 595, 43 Cal.App.3d 391.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

Defendant charged with assault with deadly weapon with intent to kill was properly convicted of displaying firearm in rude and boisterous manner where all elements required for conviction of latter crime were clearly shown and defendant requested instruction before case went to jury to effect that displaying firearm in rude and boisterous manner was an offense included within charge of assault with deadly weapon with intent to kill.  People v. Chavira (App. 2 Dist. 1970) 83 Cal.Rptr. 851, 3 Cal.App.3d 988.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

Where defendant submitted to court requested instruction that assault with a deadly weapon necessarily includes lesser offense of exhibiting deadly weapon in rude, threatening or angry manner and where there was overwhelming evidence of defendant's guilt of lesser offense and defendant from very beginning was fully informed of case he would be expected to meet, proceedings had effect of accomplishing informal amendment of information to include charge of lesser offense though information formally charged only assault with deadly weapon.  People v. Rasher (App. 2 Dist. 1970) 83 Cal.Rptr. 724, 3 Cal.App.3d 798.  Indictments And Charging Instruments Key Number 1119

Violation of this section prohibiting drawing, exhibiting or using firearms or deadly weapons is not a lesser but necessarily included offense within charge of assault with a deadly weapon or assault with intent to commit murder and, therefore, in prosecution for assault with a deadly weapon with intent to commit murder, where defendant's defense was that rifle discharged accidentally, not that she fired with intent to frighten victims, it was not error to fail to instruct as to that statute.  People v. Birch (App. 2 Dist. 1969) 83 Cal.Rptr. 98, 3 Cal.App.3d 167.  Assault And Battery Key Number 588

Information pleading assault with deadly weapon in general terms did not include, and was insufficient to give defendant notice of, charge including elements that weapon was displayed in presence of another in rude, angry or threatening manner.  People v. Leech (App. 2 Dist. 1965) 42 Cal.Rptr. 745, 232 Cal.App.2d 397.  Indictments And Charging Instruments Key Number 814

Misdemeanor defined by this section prohibiting the drawing, etc., of a firearm, is not an offense necessarily included within crime of assault with a deadly weapon.  People v. Torres (App. 1957) 151 Cal.App.2d 542, 312 P.2d 9.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

The offense of exhibiting deadly weapon in rude, angry, or threatening manner is not included in a charge of assault with intent to murder, and hence, in prosecution for assault with intent to murder, court may properly refuse to charge on exhibiting deadly weapon.  People v. Diamond (App. 2 Dist. 1939) 33 Cal.App.2d 518, 92 P.2d 486.  Criminal Law Key Number 795(2.50);  Indictments And Charging Instruments Key Number 824;  Indictments And Charging Instruments Key Number 836

The offense of exhibiting a deadly weapon in a rude, angry, or threatening manner, or using such weapon, is not necessarily included within the crime of assault with a deadly weapon.  People v. Diamond (App. 2 Dist. 1939) 33 Cal.App.2d 518, 92 P.2d 486.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

Go to table of contents - Lesser and included offenses Go to table of contents 14.Related offenses  14.Related offenses  Brandishing a firearm is merely a lesser related offense to, but not a lesser included offense of, assault with a deadly weapon or firearm, because it is theoretically possible to assault someone with a firearm without exhibiting the firearm in a rude, angry, or threatening manner.  People v. Steele (App. 2 Dist. 2000) 99 Cal.Rptr.2d 458, 83 Cal.App.4th 212, review denied.  Indictments And Charging Instruments Key Number 814;  Indictments And Charging Instruments Key Number 836

Go to table of contents - Related offenses Go to table of contents 15.Sufficiency of evidence  15.Sufficiency of evidence  Evidence supported finding that defendant, whose felony conviction for exhibiting loaded firearm could not stand, had exhibited loaded firearm in rude, angry, or threatening manner, as required to support his conviction of lesser included misdemeanor offense of exhibiting loaded firearm; overwhelming evidence showed defendant had exhibited loaded firearm in rude, angry, or threatening manner twice in one day outside private residence.  People v. Rivera (App. 4 Dist. 2003) 8 Cal.Rptr.3d 141, 114 Cal.App.4th 872.  Weapons Key Number 281;  Weapons Key Number 292

Evidence did not support finding that defendant exhibited loaded firearm on grounds of day care center, as required to convict defendant of felony exhibiting loaded firearm on these premises; altercations involving loaded firearm occurred outside private residence, and felony provision specifically requires proscribed offense be committed on grounds of day care center or similar facility.  People v. Rivera (App. 4 Dist. 2003) 8 Cal.Rptr.3d 141, 114 Cal.App.4th 872.  Weapons Key Number 171

Finding that prosecution established elements of prior brandishing offense, so that it was admissible at penalty phase of capital murder prosecution, was supported by victim's testimony that, when he returned home one morning, he confronted defendant and another man as they were entering an automobile in his driveway, that driver said, “Shoot him,” and that defendant positioned a rifle at him.  People v. Sanders (1995) 46 Cal.Rptr.2d 751, 11 Cal.4th 475, 12 Cal.4th 783C, 905 P.2d 420, modified on denial of rehearing, certiorari denied 117 S.Ct. 115, 519 U.S. 838, 136 L.Ed.2d 66.  Sentencing And Punishment Key Number 1762

Evidence was sufficient to submit charge of exhibiting firearm in presence of peace officer to jury, regardless of whether officers violated “knock-notice” statute when entering defendant's home to serve search warrant, where substantial evidence was presented that police officers were engaged in performance of their duties when defendant brandished shotgun;  if sufficient time elapsed, so that defendant was aware officers were in his house, he would have no right to brandish weapon.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Weapons Key Number 187;  Weapons Key Number 306

In trial against homeowner for exhibiting firearm in presence of peace officer, officers' alleged violation of “knock-notice” statute, requiring police to give notice of authority and purpose before forcibly entering house to execute warrant, did not require utilization of exclusionary rule to exclude evidence relating to homeowner's use of shotgun after police entered his home;  antecedent unlawful entry did not require immunity for new crimes committed thereafter.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Criminal Law Key Number 392.39(11)

Evidence, including testimony by police officer that when he entered store defendant stated that he had been shot while attempting to rob grocery store owner, was sufficient to support conviction of defendant for attempted robbery and exhibiting a firearm in a threatening manner.  People v. Hicks (App. 1 Dist. 1982) 180 Cal.Rptr. 391, 128 Cal.App.3d 423.  Robbery Key Number 24.30;  Weapons Key Number 292

Conviction of defendant for drawing or exhibiting a firearm in a rude, angry, or threatening manner in the immediate presence of a peace officer was supported by substantial evidence, including defendant's assumption of a classical gunfighter's stance, his refusal to turn over his weapon to the officer at the latter's request, and his statement that if the officer wanted the gun he could come and get it.  People v. Mercer (App. 3 Dist. 1980) 169 Cal.Rptr. 897, 113 Cal.App.3d 803.  Weapons Key Number 292

Go to table of contents - Sufficiency of evidence Go to table of contents 16.Instructions  16.Instructions  Evidence that defendant brandished gun before using it to shoot her husband in the chest was insufficient to support an involuntary manslaughter jury instruction based on a misdemeanor-manslaughter theory, where defendant claimed not to remember aiming or firing the gun, and defendant presented evidence that she was suffering from psychotic depression when she killed husband.  People v. Gana (App. 4 Dist. 2015) 186 Cal.Rptr.3d 724, 236 Cal.App.4th 598, rehearing denied, review filed, review denied, certiorari denied 136 S.Ct. 904, 577 U.S. 1107, 193 L.Ed.2d 798, habeas corpus denied 2017 WL 1843684, affirmed 762 Fed.Appx. 388, 2019 WL 968032.  Homicide Key Number 1458

Any error in trial court's failure to give a jury instruction on involuntary manslaughter based on the theory that capital defendant accidentally shot victim while committing the misdemeanor of brandishing a firearm was harmless to defendant's second degree murder conviction, since a finding of involuntary manslaughter would have required conclusions both that the shooting was accidental and that defendant had acted without malice, which were not likely in light of eyewitness testimony that defendant put the gun to victim's head and threatened to kill him.  People v. Thomas (2012) 137 Cal.Rptr.3d 533, 53 Cal.4th 771, 269 P.3d 1109, rehearing denied, certiorari denied 133 S.Ct. 380, 568 U.S. 923, 184 L.Ed.2d 224.  Criminal Law Key Number 1173.2(4)

Instructions on excusable homicide and on brandishing a weapon, including an instruction that brandishing in self-defense is lawful, were required in prosecution for attempted second-degree murder in which defendant asserted that he accidentally shot victim in the course of lawful self-defense.  People v. Villanueva (App. 2 Dist. 2008) 86 Cal.Rptr.3d 534, 169 Cal.App.4th 41.  Homicide Key Number 1487

Instruction on involuntary manslaughter, based on theory that defendant was merely brandishing shotgun, a misdemeanor offense, at time of shooting, was not warranted in prosecution for first-degree murder, where defendant testified he “fired” shotgun at victim because victim “took [his] wife,” and conceded in his brief on appeal that victim's shooting resulted from intentional conduct of defendant directed at victim.  People v. Gutierrez (2002) 124 Cal.Rptr.2d 373, 28 Cal.4th 1083, 52 P.3d 572, as modified, rehearing denied, certiorari denied 123 S.Ct. 1899, 538 U.S. 1001, 155 L.Ed.2d 829.  Homicide Key Number 1457

Trail court should have sua sponte instructed jury in voluntary manslaughter prosecution on lesser offense of misdemeanor involuntary manslaughter, i.e., unlawful killing without malice in commission of unlawful act not amounting to felony; evidence indicated that defendant committed misdemeanor offense of “brandishing” weapon when he used his gun in quarrel with victim.  People v. Lee (1999) 82 Cal.Rptr.2d 625, 20 Cal.4th 47, 971 P.2d 1001, rehearing denied.  Criminal Law Key Number 824(3)

Court's duty to sua sponte instruct jury in voluntary manslaughter prosecution on lesser offense of misdemeanor involuntary manslaughter, i.e., unlawful killing without malice in commission of unlawful act not amounting to felony, was not excused by fact that court did instruct on two other theories of involuntary manslaughter, i.e., criminal negligence and unconsciousness resulting from voluntary intoxication.  People v. Lee (1999) 82 Cal.Rptr.2d 625, 20 Cal.4th 47, 971 P.2d 1001, rehearing denied.  Criminal Law Key Number 824(3);  Homicide Key Number 1458

Any error in failing to sua sponte instruct jury in voluntary manslaughter prosecution on lesser offense of misdemeanor involuntary manslaughter, i.e., unlawful killing without malice in commission of unlawful act not amounting to felony, was harmless; in convicting defendant of voluntary manslaughter, jury necessarily found intent to kill, and evidence supported such finding. (Per Baxter, J., with the Chief Justice and one Justice concurring, and one Justice concurring in result).  People v. Lee (1999) 82 Cal.Rptr.2d 625, 20 Cal.4th 47, 971 P.2d 1001, rehearing denied.  Criminal Law Key Number 1173.3

Given elderly defendant's sight and hearing impairments, standard liability instruction for charge of exhibiting firearm in presence of peace officer did not go far enough, and jury should have been instructed on defense theory of case, requiring it to recognize defendant's physical disabilities when determining whether he “reasonably should have known” that persons in his home were peace officers, and in determining conformance of defendant's conduct to that of reasonable person with same physical disabilities.  People v. Mathews (App. 2 Dist. 1994) 30 Cal.Rptr.2d 330, 25 Cal.App.4th 89.  Weapons Key Number 330

Jury instruction stating that defendant's alcohol consumption could be considered in determining whether he knew that police officer was engaged in performance of his duties was not warranted at trial on charges of assaulting a peace officer with a firearm, and exhibiting a firearm in the presence of a peace officer, where there was no evidence that defendant showed symptoms of having consumed intoxicating substances when he assaulted officer; rather, evidence indicated that he showed no such symptoms.  Kaiser v. Lockyer, N.D.Cal.2003, 2003 WL 21667153, Unreported.  Criminal Law Key Number 774

Go to table of contents - Instructions Go to table of contents 17.Sentence and punishment  17.Sentence and punishment  Crime of exhibiting a firearm in a threatening manner in the immediate presence of a peace officer does not constitute an act of violence committed with the intent to harm more than one person or by a means likely to cause harm to several persons, so that crime does not come within multiple victim exception to statute prohibiting multiple punishments for an act or omission that is punishable in different ways by different provisions of law, and a single act of exhibiting a firearm may only punished once, regardless of number of peace officers present.  People v. Hall (App. 3 Dist. 2000) 100 Cal.Rptr.2d 279, 83 Cal.App.4th 1084, as modified, review denied.  Sentencing And Punishment Key Number 539;  Sentencing And Punishment Key Number 540

Defendant who had pointed a loaded weapon at three police officers could not be sentenced consecutively for three counts of exhibiting a firearm in a threatening manner in the immediate presence of a peace officer, based on each officer at whom weapon was pointed, pursuant to multiple victim exception to statute prohibiting multiple punishments for an act or omission that is punishable in different ways by different provisions of law, since crime of exhibiting a firearm is not centrally an act of violence against the person.  People v. Hall (App. 3 Dist. 2000) 100 Cal.Rptr.2d 279, 83 Cal.App.4th 1084, as modified, review denied.  Sentencing And Punishment Key Number 611

Only when the exhibition of the firearm in a threatening manner in the immediate presence of a peace officer, which is prohibited by statute, becomes an assault, may the observers become victims, and may a single act warrant multiple punishment under multiple victim exception to statute prohibiting multiple punishments for an act or omission that is punishable in different ways by different provisions of law.  People v. Hall (App. 3 Dist. 2000) 100 Cal.Rptr.2d 279, 83 Cal.App.4th 1084, as modified, review denied.  Sentencing And Punishment Key Number 540

Attempted exhibition of a firearm in presence of a police officer is not a “serious felony” invoking five-year enhancement for prior convictions.  People v. Austin (App. 3 Dist. 1985) 211 Cal.Rptr. 509, 165 Cal.App.3d 547.  Sentencing And Punishment Key Number 1259

Misdemeanor offense of exhibiting a deadly weapon is punishable by imprisonment in the county jail not exceeding six months;  sentence to state prison is improper.  In re Kubler (App. 1 Dist. 1975) 126 Cal.Rptr. 25, 53 Cal.App.3d 799.  Prisons Key Number 216

Go to table of contents - Sentence and punishment Go to table of contents 18.Harmless error  18.Harmless error  In prosecution on four counts of assault with a firearm and brandishing a firearm, based on defendant's conduct in pointing a shotgun out his window at his neighbors and employees of contractor that they had hired to replace fence between the two properties, any error in admission of shotgun and other evidence that police officer had seized by means of her warrantless entry into defendant's home was harmless beyond reasonable doubt, where defendant was convicted only of brandishing charge, and there was extensive evidence of his brandishing of shotgun, including video taken by neighbors during the tense, minute-long confrontation between parties.  People v. Yi Chih Chen (App. 4 Dist. 2020) 264 Cal.Rptr.3d 570.  Criminal Law Key Number 1169.1(8)

Go to table of contents - Harmless error Go to table of contents 19.Abuse of discretion  19.Abuse of discretion  In prosecution of defendant for brandishing shotgun at his neighbors and at employees of contractor that they had hired to replace fence between the two properties, trial court did not abuse its discretion in allowing the People to reopen its case-in-chief to allow police officer to clarify her testimony regarding the ammunition removed from defendant's home, as to whether it constituted birdshot or buckshot, on the chance that one or more jurors might know the difference and be confused that the evidence presented “sa[id] one thing and they th[ought] it [was] something else”; whether the ammunition was buckshot or birdshot would not have influenced the jury on the brandishing charge, given that criminal culpability did not turn on the type of ammunition or on whether shotgun was even loaded.  People v. Yi Chih Chen (App. 4 Dist. 2020) 264 Cal.Rptr.3d 570.  Criminal Law Key Number 686(1)