CALCRIM No. 525. Second Degree Murder: Discharge From Motor Vehicle (Pen. Code, § 190(d))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
525.Second Degree Murder: Discharge From Motor Vehicle (Pen.
Code, § 190(d))
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;
AND
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.
258
New January 2006
BENCH NOTES
Instructional Duty
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.2d 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 [111 Cal.Rptr.2d 129, 29 P.3d 209].)
AUTHORITY
• Second Degree Murder, Discharge From Vehicle. Pen. Code, § 190(d).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][a], [2][a][vii], [4][c] (Matthew Bender).
526-540. Reserved for Future Use
HOMICIDE CALCRIM No. 525
259
D. FELONY MURDER
Introduction to Felony-Murder Series
The Supreme Court recently clarified the temporal component necessary for liability
for a death under the felony-murder rule. (People v. Wilkins (2013) 56 Cal.4th 333,
344.) In that case, the Supreme Court noted the limited usefulness of former
CALCRIM No. 549, Felony Murder, One Continuous Transaction - Defined, which
was based on the facts of People v. Cavitt (2004) 33 Cal.4th 187, 208, in which a
non-killer fled, leaving behind an accomplice who killed. (People v. Wilkins, supra,
at p. 342.) To avoid any potential confusion, the committee has deleted that
instruction and replaced it appropriate bench note references. If the defendant
committed the homicidal act and fled, that killing did not occur in the commission
of the felony if the fleeing felon has reached a place of temporary safety. (People v.
Wilkins, supra, at p. 345.)
The committee has provided three separate instructions for both first and second
degree felony murder. These instructions present the following options:
A. Defendant Allegedly Committed Fatal Act
B. Coparticipant Allegedly Committed Fatal Act
C. Other Acts Allegedly Caused Death
For a simple case in which the defendant allegedly personally caused the death by
committing a direct act of force or violence against the victim, the court may use an
option A instruction. This option contains the least amount of bracketed material and
requires the least amount of modification by the court.
In a case where the prosecution alleges that the defendant is a “nonkiller cofelon”
liable under the felony-murder rule for a death caused by another participant in the
felony, then the court must use an option B instruction. This option allows the court
to instruct that the defendant may have committed the underlying felony or may
have aided and abetted or conspired to commit an underlying felony that actually
was committed by a coparticipant.
If the evidence indicates that either the defendant or a coparticipant may have
committed the fatal act, the court should give both option A and option B
instructions.
In addition, the committee has provided option C instructions to account for the
unusual factual situations where a victim dies during the course of a felony as a
result of a heart attack, a fire, or a similar cause, rather than as a result of some act
of force or violence committed against the victim by one of the participants. (See
People v. Billa (2003) 31 Cal.4th 1064, 1072.) Option C is the most complicated of
the three options provided. Thus, although option C is broad enough to cover most
felony-murder scenarios, the committee recommends using an option A or B
instruction whenever appropriate to avoid providing the jury with unnecessarily
complicated instructions.
261

© Judicial Council of California.