California Criminal Jury Instructions (CALCRIM) (2017)

970. Shooting Firearm in Grossly Negligent Manner

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970.Shooting Firearm or BB Device in Grossly Negligent Manner
(Pen. Code, § 246.3)
The defendant is charged [in Count ] with shooting a (firearm/
BB Device) in a grossly negligent manner [in violation of Penal Code
section 246.3].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant intentionally shot a (firearm/BB device);
2. The defendant did the shooting with gross negligence;
[AND]
3. The shooting could have resulted in the injury or death of a
person(;/.)
<Give element 4 when instructing on self-defense or defense of another.>
[AND
4. The defendant did not act (in self-defense/ [or] in defense of
someone else).]
Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury.
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with gross negligence when the way he or
she acts is so different from the way an ordinarily careful person would
act in the same situation that his or her act amounts to disregard for
human life or indifference to the consequences of that act.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[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 BB device is any instrument that expels a projectile, such as a BB or
a pellet, through the force of air pressure, gas pressure, or spring
action.]
691
0179
[The term[s] (great bodily injury/ [and] firearm) (is/are) defined in
another instruction to which you should refer.]
New January 2006; Revised June 2007, 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
sua sponte duty to instruct on the defense. Give bracketed element 4 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.
AUTHORITY
• Elements. Pen. Code, § 246.3.
• Discharge Must be Intentional. People v. Robertson (2004) 34 Cal.4th 156,
167 [17 Cal.Rptr.3d 604, 95 P.3d 872]; In re Jerry R. (1994) 29 Cal.App.4th
1432, 1438 [35 Cal.Rptr.2d 155]; People v. Alonzo (1993) 13 Cal.App.4th 535,
538 [16 Cal.Rptr.2d 656].
• Firearm Defined. Pen. Code, § 16520.
• BB Device Defined. Pen. Code, § 246.3(c).
• Willful Defined. Pen. Code, § 7(1).
• Gross Negligence Defined. People v. Alonzo (1993) 13 Cal.App.4th 535, 540
[16 Cal.Rptr.2d 656]; see People v. Penny (1955) 44 Cal.2d 861, 879–880 [285
P.2d 926].
• Actual Belief Weapon Not Loaded Negates Mental State. People v. Robertson
(2004) 34 Cal.4th 156, 167 [17 Cal.Rptr.3d 604, 95 P.3d 872]; In re Jerry R.
(1994) 29 Cal.App.4th 1432, 1438–1439, 1440 [35 Cal.Rptr.2d 155].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 48.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.01[1][i] (Matthew Bender).
LESSER INCLUDED OFFENSES
Unlawful possession by a minor of a firearm capable of being concealed on the
person (see Pen. Code, § 29610) is not a necessarily included offense of unlawfully
discharging a firearm with gross negligence. (In re Giovani M. (2000) 81
CALCRIM No. 970 ASSAULTIVE AND BATTERY CRIMES
692
0180
Cal.App.4th 1061, 1066 [97 Cal.Rptr.2d 319].)
RELATED ISSUES
Second Degree Felony-Murder
Grossly negligent discharge of a firearm is an inherently dangerous felony and may
serve as the predicate offense to second degree felony-murder. (People v. Robertson
(2004) 34 Cal.4th 156, 173 [17 Cal.Rptr.3d 604, 95 P.3d 872] [merger doctrine
does not apply]; People v. Clem (2000) 78 Cal.App.4th 346, 351 [92 Cal.Rptr.2d
727]; see CALCRIM Nos. 541A–541C, Felony Murder: Second Degree.)
Actual Belief Weapon Not Loaded Negates Mental State
“A defendant who believed that the firearm he or she discharged was unloaded . . .
would not be guilty of a violation of section 246.3.” (People v. Robertson (2004)
34 Cal.4th 156, 167 [17 Cal.Rptr.3d 604, 95 P.3d 872] [citing In re Jerry R. (1994)
29 Cal.App.4th 1432, 1438–1439, 1440 [35 Cal.Rptr.2d 155]].)
971–979. Reserved for Future Use
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 970
693
0181