California Criminal Jury Instructions (CALCRIM) (2017)
3148. Personally Used Firearm: Intentional DischargeDownload PDF
3148.Personally Used Firearm: Intentional Discharge (Pen. Code,
If you ﬁnd the defendant guilty of the crime[s] charged in Count[s]
[,] [or of attempting to commit (that/those) crime[s]][ or the
lesser crime[s] of <insert name[s] of alleged lesser
offense[s]>], you must then decide whether[, for each crime,] the People
have proved the additional allegation that the defendant personally and
intentionally discharged a ﬁrearm during that offense. [You must decide
whether the People have proved this allegation for each crime and
return a separate ﬁnding for each crime.]
To prove this allegation, the People must prove that:
1. The defendant personally discharged a ﬁrearm during the
commission [or attempted commission] of the crime;
2. The defendant intended to discharge the ﬁrearm.
[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.]
[The term ﬁrearm is deﬁned in another instruction.]
<If there is an issue in the case over whether the defendant discharged the
ﬁrearm “during the commission of” the offense, see Bench Notes.>
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not met this burden, you must ﬁnd
that the allegation has not been proved.
New January 2006; Revised February 2012
The court has a sua sponte duty to give this instruction deﬁning the elements of
the enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct.
2348, 147 L.Ed.2d 435].) If the defendant is charged with an enhancement for both
intentional discharge and intentional discharge causing great bodily injury or death,
the court may give CALCRIM No. 3150, Personally Used Firearm: Intentional
Discharge and Discharge Causing Injury or Death Both Charged, instead of this
The court should give the bracketed deﬁnition of “ﬁrearm” 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.
If the case involves an issue of whether the defendant used the weapon “during the
commission of” the offense, the court may give CALCRIM No. 3261, In
Commission of Felony: Deﬁned—Escape Rule. (See People v. Jones (2001) 25
Cal.4th 98, 109 [104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13
Cal.4th 1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32
Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].)
• Enhancement. Pen. Code, § 12022.53(c).
•Firearm Deﬁned. Pen. Code, § 16520.
• “In Commission of” Felony. People v. Jones (2001) 25 Cal.4th 98, 109–110
[104 Cal.Rptr.2d 753, 18 P.3d 674]; People v. Masbruch (1996) 13 Cal.4th
1001, 1014 [55 Cal.Rptr.2d 760, 920 P.2d 705]; People v. Taylor (1995) 32
Cal.App.4th 578, 582 [38 Cal.Rptr.2d 127].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 322.
5Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 644.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.30 (Matthew Bender).
Self-Defense and Imperfect Self-Defense
Penal Code section 12022.53(l) provides that “[t]he enhancements speciﬁed in this
section shall not apply to the lawful use or discharge of a ﬁrearm . . . by any
person in lawful self-defense, lawful defense of another, or lawful defense of
property, as provided in Sections 197, 198, and 198.5.” In People v. Watie (2002)
100 Cal.App.4th 866, 884 [124 Cal.Rptr.2d 258], the court held, “[t]his subdivision,
on its face, exempts lawful (perfect) self-defense from the section’s application. It
does not exempt imperfect self-defense.” Further, an instruction informing the jury
that the defense of self-defense applies to the enhancement is not necessary. (Id. at
CALCRIM No. 3148 ENHANCEMENTS AND SENTENCING FACTORS