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Charge of Threatening Motorist With Firearm Doesn’t Require Fear on Part of Victim—C.A.
Issue Is Whether ‘Reasonable Person’ Would Have Been Caused Fright, an Objective Standard, Opinion Says, Rejecting 1996 Interpretation
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has ordered reinstatement of a felony charge of brandishing a firearm at a person in a motor vehicle, rejecting the trial judge’s view—also one expressed in a 1996 opinion from the First District—that the victim must have experienced fright based on the incident.
There’s no such requirement set forth in the statute under which defendant/respondent Jacob Frederick Ball was charged, Justice Nathan Scott declared in an unpublished opinion filed Wednesday. His opinion reverses an order by Orange Superior Court Judge Gary S. Paer setting aside a count, pursuant to Penal Code §995, based on lack of “reasonable or probable cause.”
The brandishing statute in question, Penal Code §417.3, reads:
“Every person who, except in self-defense, in the presence of any other person who is an occupant of a motor vehicle proceeding on a public street or highway, draws or exhibits any firearm, whether loaded or unloaded, in a threatening manner against another person in such a way as to cause a reasonable person apprehension or fear of bodily harm is guilty of a felony.”
Legislative Intent
Scott wrote:
“We conclude count 1 should be reinstated because the Legislature did not intend to require that the brandishing victim experience subjective fear….
“We find the phrase ‘a reasonable person’ indicates the statute requires only that the ‘threatening manner’ of brandishing be done ‘in such a way’ that it would objectively cause fear. We have not found any legislative history to the contrary.”
He remarked:
“The Legislature knows how to specify a subjective element when it wants to require one.”
First District Opinion
Ball relied on the 1996 Court of Appeal decision by the First District’s Div. Four in People v. Lara. Presiding Justice Carl West Anderson (now deceased) interpreted §417.3 to “make it a felony to brandish a firearm at an occupant of a motor vehicle if the brandishing reasonably generated apprehension or fear of bodily harm on the part of the occupant.”
Scott pointed out that the issue in that case was whether the victim had to “actually be the occupant of a vehicle” and that the court was not called upon to determine whether it is necessary to a conviction that the person have been placed in “apprehension or fear of bodily harm.”
Orange Superior Court Judge Joy Weisenfeld Markman, acting as a magistrate, properly held Ball to answer on the brandishing charge as well as two misdemeanor counts, Scott said.
The case is People v. Ball, G064274.
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