California Criminal Jury Instructions (CALCRIM) (2017)
965. Shooting at Inhabited House or Occupied Motor VehicleDownload PDF
F. SHOOTING AND BRANDISHING
965.Shooting at Inhabited House or Occupied Motor Vehicle
(Pen. Code, § 246)
The defendant is charged [in Count ] with shooting at an
(inhabited house/inhabited house car/inhabited camper/occupied
building/occupied motor vehicle/occupied aircraft) [in violation of Penal
Code section 246].
To prove that the defendant is guilty of this crime, the People must
1. The defendant willfully and maliciously shot a ﬁrearm;
2. The defendant shot the ﬁrearm at an (inhabited house/inhabited
house car/inhabited camper/occupied building/occupied motor
<Give element 3 when instructing on self-defense or defense of another.>
3. The defendant did not act (in self-defense/ [or] in defense of
Someone commits an act willfully when he or she does it willingly or on
Someone acts maliciously when he or she intentionally does a wrongful
act or when he or she acts with the unlawful intent to disturb, defraud,
annoy, or injure someone else.
[A (house/house car/camper) is inhabited if someone uses it as a
dwelling, whether or not someone is inside at the time of the alleged
[A (house/house car/camper) is inhabited if someone used it as a
dwelling and left only because a natural or other disaster caused him or
her to leave.]
[A (house/house car/camper) is not inhabited if the former residents
have moved out and do not intend to return, even if some personal
property remains inside.]
[A house includes any (structure/garage/office/ <insert other
structure>) that is attached to the house and functionally connected with
[A motor vehicle includes a (passenger vehicle/motorcycle/motor scooter/
bus/school bus/commercial vehicle/truck tractor and trailer/
<insert other type of motor vehicle>).]
[A house car is a motor vehicle originally designed, or permanently
altered, and equipped for human habitation, or to which a camper has
been permanently attached.]
[A camper is a structure designed to be mounted upon a motor vehicle
and to provide facilities for human habitation or camping purposes.]
[An aircraft is an airplane or other craft intended for and capable of
transporting persons through the air.]
[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.]
[The term[s] (ﬁrearm/ <insert other term>) (is/are) deﬁned
in another instruction to which you should refer.]
New January 2006; Revised February 2012, August 2012
The court has a sua sponte duty to give this instruction deﬁning the elements of
If there is sufficient evidence of self-defense or defense of another, the court has a
sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
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.
CALCRIM No. 966, Shooting at Uninhabited House or Unoccupied Motor Vehicle.
CALCRIM No. 967, Shooting at Unoccupied Aircraft.
• Elements. Pen. Code, § 246.
•Aircraft Deﬁned. Pen. Code, § 247.
• Camper Deﬁned. Veh. Code, § 243.
• Firearm Deﬁned. Pen. Code, § 16520.
CALCRIM No. 965 ASSAULTIVE AND BATTERY CRIMES
• House Car Deﬁned. Veh. Code, § 362.
• Malicious Deﬁned. Pen. Code, § 7(4); People v. Watie (2002) 100 Cal.App.4th
866, 879 [124 Cal.Rptr.2d 258].
• Motor Vehicle Deﬁned. Veh. Code, § 415.
• Willful Deﬁned. Pen. Code, § 7(1); In re Jerry R. (1994) 29 Cal.App.4th
1432, 1438 [35 Cal.Rptr.2d 155].
• General Intent Crime. People v. Jischke (1996) 51 Cal.App.4th 552, 556 [59
Cal.Rptr.2d 269]; People v. Cruz (1995) 38 Cal.App.4th 427, 431–433 [45
Cal.Rptr.2d 148] [intent to strike building not required].
• Occupied Building. People v. Adams (1982) 137 Cal.App.3d 346, 354–355
[187 Cal.Rptr. 505] [attached garage].
• Occupied Motor Vehicle. People v. Buttles (1990) 223 Cal.App.3d 1631, 1638
[273 Cal.Rptr. 397] [tractor/trailer rig being operated on a road].
• House Not Inhabited Means Former Residents Not Returning. People v.
Cardona (1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
• Offense of Discharging Firearm at Occupied Vehicle Can Be Committed When
Gun Is Inside Vehicle. People v. Manzo (2012) 53 Cal.4th 880, 889–890 [138
Cal.Rptr. 16, 270 P.3d 711].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 49.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, §§ 144.01[i], 144.03,  (Matthew Bender).
LESSER INCLUDED OFFENSES
Assault with a deadly weapon (Pen. Code, § 245) is not necessarily included in the
offense of discharging a ﬁrearm at an occupied vehicle. (In re Daniel R. (1993) 20
Cal.App.4th 239, 244, 247 [24 Cal.Rptr.2d 414].)
Grossly negligent discharge of a ﬁrearm pursuant to Penal Code section 246.3(a) is
a lesser included offense of discharging a ﬁrearm at an occupied building. (People
v. Ramirez (2009) 45 Cal.4th 980, 990 [89 Cal.Rptr.3d 586, 201 P.3d 466].)
Concurrent Sentence for Firearm Possession
If a prior felon arrives at the scene already in possession of a ﬁrearm and then
shoots at an inhabited dwelling, Penal Code section 654 does not preclude
imposing sentences for both offenses. (People v. Jones (2002) 103 Cal.App.4th
1139 [127 Cal.Rptr.2d 319].)
Shooting Weapon Inside Dwelling
“[T]he ﬁring of a pistol within a dwelling house does not constitute a violation of
Penal Code section 246.” (People v. Stepney (1981) 120 Cal.App.3d 1016, 1021
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 965
[175 Cal.Rptr. 102] [shooting television inside dwelling].) However, shooting from
“inside [an] apartment . . . in the direction of the apartment below” is a violation
of section 246. (People v. Jischke (1996) 51 Cal.App.4th 552, 556 [59 Cal.Rptr.2d
CALCRIM No. 965 ASSAULTIVE AND BATTERY CRIMES