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

Judicial Council of California Criminal Jury Instructions (2023 edition)

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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;
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.
New January 2006; Revised September 2020
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].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutors erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Second Degree Murder, Discharge From Vehicle. Pen. Code, § 190(d).
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
Introduction to Felony-Murder Series
Senate Bill No. 1437 (2017-2018 Reg. Sess.) substantially changed accomplice
liability for felony murder. Malice may no longer be imputed simply from
participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant
participated in the commission or attempted commission of a designated felony
when a person was killed, the defendant is now liable under the felony-murder rule
only if: (1) the defendant was the actual killer; (2) the defendant was not the actual
killer but, with intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in committing murder in the first
degree; or (3) the defendant was a major participant in the underlying designated
felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)
These restrictions do not apply when the victim was a peace officer and the
defendant knew or reasonably should have known that the victim was a peace
officer acting within the performance of his or her duties. (Pen. Code, § 189(f).)
As a result of these changes, the committee has modified CALCRIM Nos. 540B and
540C to incorporate the additional statutory elements for accomplice liability. The
committee has also removed CALCRIM Nos. 541A, 541B, and 541C which
addressed second degree felony murder.
The three separate instructions for felony murder 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
CALCRIM No. 540A. This instruction 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 a participant in the felony other than the
defendant caused the death, the court must use CALCRIM No. 540B. This
instruction 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 CALCRIM No. 540A and
In addition, the committee has provided CALCRIM No. 540C 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.) This instruction is the most
complicated of the three instructions. Thus, although CALCRIM No. 540C is broad
enough to cover most felony-murder scenarios, the committee recommends using
CALCRIM Nos. 540A or 540B whenever appropriate to avoid providing the jury
with unnecessarily complicated instructions.
In People v. Wilkins (2013) 56 Cal.4th 333, 344, the Supreme Court clarified the
temporal component necessary for liability for a death under the felony-murder rule
and noted the limited usefulness of former CALCRIM No. 549, Felony Murder, One
Continuous Transaction - Defined. To avoid any potential confusion, the committee
has deleted that instruction and replaced it with 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.)

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