CALCRIM No. 970. Shooting Firearm or BB Device in Grossly Negligent Manner (Pen. Code, § 246.3)
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
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
To prove that the defendant is guilty of this crime, the People must
1. The defendant intentionally shot a (firearm/BB device);
2. The defendant did the shooting with gross negligence;
3. The shooting could have resulted in the injury or death of a
<Give element 4 when instructing on self-defense or defense of another.>
4. The defendant did not act (in self-defense/ [or] in defense of
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.
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
[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, September 2019, September
The court has a sua sponte duty to give an instruction defining the elements of the
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.
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533-535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
• 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
• 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
• 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].
LESSER INCLUDED OFFENSES
Unlawful possession by a minor of a firearm capable of being concealed on the
CALCRIM No. 970 ASSAULTIVE AND BATTERY CRIMES
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
Cal.App.4th 1061, 1066 [97 Cal.Rptr.2d 319].)
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]].)
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 48.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.01[i] (Matthew Bender).
971-979. Reserved for Future Use
ASSAULTIVE AND BATTERY CRIMES CALCRIM No. 970