Lara

Today we are called upon to determine whether a brandishing statute enacted in 1987 requires that the victim of the brandishing be an occupant of a motor vehicle and, if so, whether the jury in this case was properly instructed on this element of the crime.

Penal Code section 417.3 provides: “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 injury is guilty of a felony . . . The question presented is whether section 417.3 is violated only when the person who is placed in fear as a result of the exhibiting of a firearm is also the occupant of a motor vehicle proceeding on a public street or highway. We hold it is: the person against whom the brandishing is committed must be an occupant of a motor vehicle proceeding on a public street.

Appellant herein asserts that CALJIC No. 9.07 (5th ed. 1988 bound vol.) does not instruct the trier of fact that the person threatened must be an…