California Criminal Jury Instructions (CALCRIM) (2017)

968. Shooting From Motor Vehicle

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968.Shooting From Motor Vehicle (Pen. Code, § 26100(c) & (d))
The defendant is charged [in Count ] with shooting from a motor
vehicle [at another person] [in violation of Penal Code section 26100].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant willfully and maliciously shot a firearm from a
motor vehicle(;/.)
<Give element 2 when defendant charged with Pen. Code, § 26100(c).>
[AND]
[2. The defendant shot the firearm at another person who was not
in a motor vehicle(;/.)]
<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 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 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
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
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sua sponte duty to instruct on the defense. Give bracketed element 3 and any
appropriate defense instructions. (See CALCRIM Nos. 3470–3477.)
Give the bracketed phrase “at another person” in the first sentence plus bracketed
element 2 if the defendant is charged with shooting at someone who was not in a
motor vehicle. (See Pen. Code, § 26100(c).) If the defendant is only charged with
shooting from a motor vehicle (see Pen. Code, § 26100(d)), give element 1 but not
element 2.
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. 969, Permitting Someone to Shoot From Vehicle.
AUTHORITY
• Elements. Pen. Code, § 26100(c) & (d).
Firearm Defined. Pen. Code, § 16520.
• Malicious Defined. Pen. Code, § 7(4).
• Willful Defined. Pen. Code, § 7(1); In re Jerry R. (1994) 29 Cal.App.4th
1432, 1438 [35 Cal.Rptr.2d 155] [in context of Pen. Code, § 246].
• General Intent Crime. People v. Laster (1997) 52 Cal.App.4th 1450, 1468 [61
Cal.Rptr.2d 680] [dictum].
• Assault With a Firearm is not a Lesser Included Offense. People v. Licas
(2007) 41 Cal.4th 362 [60 Cal.Rptr.3d 31].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 50.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, §§ 144.01[1][i], 144.03[2], [4] (Matthew Bender).
RELATED ISSUES
Shooting at Animal
It is a separate crime to shoot from a motor vehicle at any game bird or mammal.
(See Fish & G. Code, § 3002.)
CALCRIM No. 968 ASSAULTIVE AND BATTERY CRIMES
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