968. Shooting From Motor Vehicle
The defendant is charged [in Count ______] with shooting from a motor vehicle [at another person].
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, § 12034(c)>
[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>
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.]
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 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, § 12034(c).) If the defendant is only charged with shooting from a motor vehicle (see Pen. Code, § 12034(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.
CALCRIM No. 969, Permitting Someone to Shoot From Vehicle.
Elements. Pen. Code, § 12034(c) & (d).
Firearm Defined. Pen. Code, § 12001(b).
Malicious Defined. Pen. Code, § 7, subd. 4.
Willful Defined. Pen. Code, § 7, subd. 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].
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[i], 144.03,  (Matthew Bender).
Lesser Included Offenses
Assault with a Firearm. Pen. Code, § 245(a)(2); In re Edward G. (2004) 124 Cal.App.4th 962, 971 [21 Cal.Rptr.3d 786].
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.)
(New January 2006)