CALCRIM No. 3150. Personally Used Firearm: Intentional Discharge and Discharge Causing Injury or Death - Both Charged (Pen. Code, §§ 667.61(e)(3), 12022.53(d))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3150.Personally Used Firearm: Intentional Discharge and
Discharge Causing Injury or Death - Both Charged (Pen. Code,
§§ 667.61(e)(3), 12022.53(d))
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 allegations that the defendant personally and
intentionally discharged a firearm during (that/those) crime[s] and, if so,
whether the defendant’s act caused (great bodily injury/ [or] death). [You
must decide whether the People have proved these allegations for each
crime and return a separate finding for each crime.]
To prove that the defendant intentionally discharged a firearm, the
People must prove that:
1. The defendant personally discharged a firearm during the
commission [or attempted commission] of that crime;
AND
2. The defendant intended to discharge the firearm.
If the People have proved both 1 and 2, you must then decide whether
the People also have proved that 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
855
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;
AND
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 of these allegations 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].) This instruction may be used when the defendant is charged
with an enhancement both for intentional discharge and for intentional discharge
causing great bodily injury or death. If only one of these enhancements is charged,
do not use this instruction. Instead, give CALCRIM No. 3148, Personally Used
Firearm: Intentional Discharge, or CALCRIM No. 3149, Personally Used Firearm:
Intentional Discharge Causing Injury or Death, whichever is appropriate.
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 wtih “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 weapon “during the
commission of” the offense, the court may give CALCRIM No. 3261, While
CALCRIM No. 3150 ENHANCEMENTS AND SENTENCING FACTORS
856
Committing a 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 the paragraph following the elements, 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.
AUTHORITY
• Enhancement. Pen. Code, §§ 667.61(e)(3), 12022.53(d).
• Firearm Defined. Pen. Code, § 16520.
• “During 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].
RELATED ISSUES
See the Related Issues sections of CALCRIM No. 3148, Personally Used Firearm:
Intentional Discharge, and CALCRIM No. 3149, Personally Used Firearm:
Intentional Discharge Causing Injury or Death.
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 359-360.
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial, § 727.
5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91,
Sentencing, § 91.30[5] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04 (Matthew Bender).
3151-3159. Reserved for Future Use
ENHANCEMENTS AND SENTENCING FACTORS CALCRIM No. 3150
857

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