California Criminal Jury Instructions (CALCRIM) (2017)

735. Special Circumstances: Discharge From Vehicle, Pen. Code, § 190.2(a)(21)

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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 [in violation of
Penal Code section 190.2(a)(21)].
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;
AND
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.]
New January 2006
BENCH NOTES
Instructional Duty
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].)
AUTHORITY
• 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].
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Secondary Sources
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[21], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[2][a][vii] (Matthew Bender).
CALCRIM No. 735 HOMICIDE
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