California Criminal Jury Instructions (CALCRIM) (2017)

3148. Personally Used Firearm: Intentional Discharge

Download PDF
3148.Personally Used Firearm: Intentional Discharge (Pen. Code,
§ 12022.53(c))
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;
AND
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
BENCH NOTES
Instructional Duty
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
instruction.
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
831
0049
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].)
AUTHORITY
• 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].
Secondary Sources
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[5] (Matthew Bender).
RELATED ISSUES
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
p. 886.)
CALCRIM No. 3148 ENHANCEMENTS AND SENTENCING FACTORS
832
0050