525. Second Degree Murder: Discharge From Motor Vehicle
If you find the defendant guilty of second degree murder [as charged in Count ], you must then decide whether the People have proved the additional allegation that the murder was committed by shooting a firearm from a motor vehicle.
To prove this allegation, the People must prove that:
1. (The defendant/ <insert name or description of principal if not defendant>) killed a person by shooting a firearm from a motor vehicle;
2. (The defendant/ <insert name or description of principal if not defendant>) intentionally shot at a person who was outside the vehicle;
3. When (the defendant/ <insert name or description of principal if not defendant>) shot a firearm, (the defendant/ <insert name or description of principal if not defendant>) intended to inflict great bodily injury on the person outside the vehicle.
[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.]
[A motor vehicle includes (a/an) (passenger vehicle/motorcycle/ motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/ <insert other type of motor vehicle>).]
[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
[The term[s] (great bodily injury[,]/ firearm[,]/ [and] motor vehicle) (is/are) defined in another instruction to which you should refer.]
[The People must prove that the defendant intended that the person shot at suffer great bodily injury when (he/she/ <insert name or description of principal if not defendant>) shot from the vehicle. However, the People do not have to prove that the defendant intended to injure the specific person who was actually killed.]
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved.
The court has a sua sponte duty to give this instruction defining the elements of the sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186, 193-195 99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466, 475-476, 490 [120 S.Ct. 2348, 147 L.Ed. 435].)
The statute does not specify whether the defendant must personally intend to inflict great bodily injury or whether accomplice liability may be based on a principal who intended to inflict great bodily injury even if the defendant did not. The instruction has been drafted to provide the court with both alternatives in element 3.
Give the relevant bracketed definitions 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.
Give the bracketed paragraph that begins with "The People must prove that the defendant intended," if the evidence shows that the person killed was not the person the defendant intended to harm when shooting from the vehicle. (People v. Sanchez (2001) 26 Cal.4th 834, 851, fn. 10 [11 Cal.Rptr.2d 129, 29 P.3d 209].)
Second Degree Murder, Discharge From Vehicle. Pen. Code, § 190(d).
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 164.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[a], [a][vii], [c] (Matthew Bender).
(New January 2006)