California Criminal Jury Instructions (CALCRIM) (2017)

965. Shooting at Inhabited House or Occupied Motor Vehicle

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F. SHOOTING AND BRANDISHING
(i) Shooting
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
prove that:
1. The defendant willfully and maliciously shot a firearm;
[AND]
2. The defendant shot the firearm at an (inhabited house/inhabited
house car/inhabited camper/occupied building/occupied motor
vehicle/occupied aircraft)(;/.)
<Give element 3 when instructing on self-defense or defense of another.>
[AND
3. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Someone commits an act willfully when he or she does it willingly or on
purpose.
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
shooting.]
[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
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structure>) that is attached to the house and functionally connected with
it.]
[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
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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.
Related Instructions
CALCRIM No. 966, Shooting at Uninhabited House or Unoccupied Motor Vehicle.
CALCRIM No. 967, Shooting at Unoccupied Aircraft.
AUTHORITY
• Elements. Pen. Code, § 246.
Aircraft Defined. Pen. Code, § 247.
• Camper Defined. Veh. Code, § 243.
• Firearm Defined. Pen. Code, § 16520.
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• 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].
Secondary Sources
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[1][i], 144.03[2], [4] (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].)
RELATED ISSUES
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
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[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
269].)
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