3149. Personally Used Firearm: Intentional Discharge Causing Injury or Death
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 crime causing (great bodily injury/ [or] death). [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 that crime;
2. The defendant intended to discharge the firearm;
3. The defendant's act caused (great bodily injury to/ [or] the death of) a person [who was not an accomplice to the crime].
[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.]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death) is the direct, natural, and probable consequence of the act and the (injury/ [or] death) would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.]
[There may be more than one cause of (great bodily injury/ [or] death). An act causes (injury/ [or] death) only if it is a substantial factor in causing the (injury/ [or] death). A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the (injury/ [or] death).]
[A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. A person is subject to prosecution if he or she committed the crime or if:
1. He or she knew of the criminal purpose of the person who committed the crime;
2. He or she intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime/ [or] participate in a criminal conspiracy to commit the crime).]
<If there is an issue in the case over whether the defendant used 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.
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.
If causation is at issue, the court has a sua sponte duty to instruct on proximate cause (People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335 [121 Cal.Rptr.2d 546, 48 P.3d 1107]); give the bracketed paragraph that begins with "An act causes. . . ." If there is evidence of multiple potential causes, the court should also give the bracketed paragraph that begins with "There may be more than one cause. . . ." (Id. at pp. 335-338.)
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 firearm "during the commission of" the offense, the court may give CALCRIM No. 3261, During 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].)
If, in element 3, the court gives the bracketed phrase "who was not an accomplice to the crime," the court should also give the bracketed definition of "accomplice." (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322].) Additional paragraphs providing further explanation of the definition of "accomplice" are contained in CALCRIM No. 334, Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice. The court should review that instruction and determine whether any of these additional paragraphs should be given.
Enhancement. Pen. Code, §§ 667.61(e)(3), 12022.53(d).
Firearm Defined. Pen. Code, § 12001(b).
"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].
Proximate Cause. People v. Jomo K. Bland (2002) 28 Cal.4th 313, 335-338 [121 Cal.Rptr.2d 546, 48 P.3d 1107].
Accomplice Defined. See Pen. Code, § 1111; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1167-1168 [123 Cal.Rptr.2d 322]; People v. Stankewitz (1990) 51 Cal.3d 72, 90-91 [270 Cal.Rptr. 817, 793 P.2d 23].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 322.
5 Witkin & 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).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.04 (Matthew Bender).
Need Not Personally Cause Injury or Death
"[Penal Code] Section 12022.53(d) requires that the defendant 'intentionally and personally discharged a firearm' (italics added), but only that he 'proximately caused' the great bodily injury or death. . . . The statute states nothing else that defendant must personally do. Proximately causing and personally inflicting harm are two different things." (People v. Jomo K. Bland (2002) 28 Cal.4th 313, 336 [121 Cal.Rptr.2d 546, 48 P.3d 1107] [italics in original].)
Person Injured or Killed Need Not Be Victim of Crime
In People v. Oates (2004) 32 Cal.4th 1048, 1052 [12 Cal.Rptr.3d 325, 88 P.3d 56], the defendant fired two shots into a group of people, hitting and injuring one. He was convicted of five counts of premeditated attempted murder. The Court held that the subdivision (d) enhancement for causing great bodily injury applied to each of the five counts even though the defendant only injured one person. (Id. at p. 1056.) The Court observed that "the phrase, 'any person other than an accomplice,' does not mean 'the victim' of the underlying crime." (Id. at p. 1055.) Note, however, that the Supreme Court has again granted review in this case. (See People v. Oates (Dec. 1, 2004, S128181) [21 Cal.Rptr.3d 890, 101 P.3d 956].)
Multiple Enhancements for Single Injury
The Court in Oates ((2004) 32 Cal.4th 1048 [12 Cal.Rptr.3d 325, 88 P.3d 56]; discussed above) also held that the trial court was required to impose all five subdivision (d) enhancements because Penal Code section 12022.53(f) requires a court to impose the longest enhancement available.
(Id. at p. 1056.) The Court further found that Penal Code section 654 did not preclude imposition of multiple subdivision (d) enhancements due to "the long-recognized, judicially-created exception for cases involving multiple victims of violent crime." (Id. at p. 1062.) Note, however, that the Supreme Court has again granted review in this case. (See People v. Oates (Dec. 1, 2004, S128181) [21 Cal.Rptr.3d 890, 101 P.3d 956].)
Multiple Enhancements May Not be Imposed Based on Multiple Participants
In People v. Cobb (2004) 124 Cal.App.4th 1051, 1054, fn. 3 [21 Cal.Rptr.3d 859], the defendant and two others simultaneously shot at the decedent. The defendant was convicted of personally inflicting death by use of a firearm. (Id. at p. 1053; Pen. Code, § 12022.53(d).) In addition to the sentence for personally using a firearm, the trial court also imposed two sentences under Penal Code section 12022.53(e)(1) based on the other two participants having also fired at the decedent (People v. Cobb, supra, at p. 1053.) The Court of Appeal reversed the latter two enhancements, holding that Penal Code section 12022.53(f) did not permit multiple sentence enhancements based on multiple participants in one crime. (Id. at p. 1058.)
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 a public officer, as provided in Section 196, or 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.)
(New January 2006)