735. Special Circumstances: Discharge From Vehicle, Pen. Code, § 190.2(a)(21)
The defendant is charged with the special circumstance of committing murder by shooting a firearm from a motor vehicle.
To prove that this special circumstance is true, the People must prove that:
1. (The defendant/ <insert name or description of principal if not defendant>) shot a firearm from a motor vehicle, killing <insert name of decedent>;
2. (The defendant/ <insert name or description of principal if not defendant>) intentionally shot at a person who was outside the vehicle;
3. At the time of the shooting, the defendant intended to kill.
[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>).]
[The terms (firearm/ [and] motor vehicle) (is/are) defined elsewhere in another instruction to which you should refer.]
The court has a sua sponte duty to instruct on the elements of the special circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d 573, 941 P.2d 752].)
Special Circumstance. Pen. Code, § 190.2(a)(21).
Motor Vehicle Defined. Veh. Code, § 415.
Special Circumstance Is Constitutional. People v. Rodriguez (1998) 66 Cal.App.4th 157, 172 [77 Cal.Rptr.2d 676].
3 Witkin & Epstein, California Criminal Law (3d ed. 2000) Punishment, § 447.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13, 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[a][vii] (Matthew Bender).
(New January 2006)