SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 965 Shooting At Inhabited House Or Occupied Motor Vehicle (PC 246)
TABLE OF CONTENTS
F 965.1 Titles And Identification Of Parties
F 965.1 Inst 1 Shooting At Inhabited House Or Occupied Motor Vehicle—Title
F 965.1 Inst 2 Identification Of Prosecution And Defendant
F 965.2 Shooting At Inhabited House Or Occupied Motor Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 965.2 Inst 1 Tailoring To Facts
F 965.3 Shooting At Inhabited House Or Occupied Motor Vehicle—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 965.4 Shooting At Inhabited House Or Occupied Motor Vehicle—Burden Of Proof Issues
F 965.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 965.4 Inst 2 Inhabited House, Etc.—Modification Of Burden Shifting Language
F 965.5 Shooting At Inhabited House Or Occupied Motor Vehicle—Elements And Definitions
F 965.5 Inst 1 Separate Enumeration Of Willfully And Maliciously Elements
F 965.5 Inst 2 Willfully: Knowledge Requirement
F 965.5 Inst 3 Definition of Inhabited Dwelling (PC 246)
F 965.5 Inst 4 Shooting At Inhabited Dwelling: Specific Intent To Hit The Structure Or Reckless Disregard Of Probable Consequences
F 965.6 Shooting At Inhabited House Or Occupied Motor Vehicle—Defense Theories
F 965.6 Inst 1 Discharge Of A Firearm: Negation Of Knowledge Element
F 965.7 Shooting At Inhabited House Or Occupied Motor Vehicle—Preliminary Fact Issues [Reserved]
F 965.8 Shooting At Inhabited House Or Occupied Motor Vehicle— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 965.9 Shooting At Inhabited House Or Occupied Motor Vehicle—Lesser Offense Issues
F 965.9 Note 1 Shooting At Inhabited Dwelling Or Occupied Motor Vehicle (PC 246): Grossly Negligent Discharge Of A Firearm (PC 246.3) As Lesser Included
F 965.9 Note 2 Shooting At An Occupied Vehicle: ADW Is Not An LIO (PC 246)
F 965.9 Note 3 Shooting At Inhabited Dwelling: Lesser Offense Of Violating City Ordinance (PC 246)
Return to Series 900 Table of Contents.
F 965.1 Titles And Identification Of Parties
F 965.1 Inst 1 Shooting At Inhabited House Or Occupied Motor Vehicle—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 965.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 965.2 Shooting At Inhabited House Or Occupied Motor Vehicle—Tailoring To Facts: Persons, Places, Things And Theories
F 965.2 Inst 1 Tailoring To Facts
*Modify CC 965, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. The defendant shot the firearm at an (inhabited house/inhabited house car/inhabited camper/occupied building/occupied motor vehicle/occupied aircraft)(;/.)_______________ <insert specific house or motor vehicle allegedly shot at>.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 965.3 Shooting At Inhabited House Or Occupied Motor Vehicle—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 965.4 Shooting At Inhabited House Or Occupied Motor Vehicle—Burden Of Proof Issues
F 965.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 965.4 Inst 2 Inhabited House, Etc.—Modification Of Burden Shifting Language
*Replace CC 965, paragraph 7, as follows:
The prosecution must prove beyond a reasonable doubt that the _______________ <insert specific house or motor vehicle allegedly shot at> was inhabited when the defendant [allegedly] shot at it. This requires the prosecution to prove beyond a reasonable doubt that:
1. The residents have not moved out;
OR
2. Failing proof of 1, above, that the residents intended to return [regardless of whether or not some personal property remained inside].
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 965.5 Shooting At Inhabited House Or Occupied Motor Vehicle—Elements And Definitions
F 965.5 Inst 1 Separate Enumeration Of Willfully And Maliciously Elements
*Modify CC 965 Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant willfully and maliciously shot a firearm;
2. (He/She) did so willfully;
3. (He/She) did so maliciously;
[Renumber remaining Elements]
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 965.5 Inst 2 Willfully: Knowledge Requirement
See FORECITE F 820.5 Inst 1.
F 965.5 Inst 3 Definition of Inhabited Dwelling (PC 246)
*Add to CC 965:
In attempting to deciding whether a dwelling house is inhabited, it is the present use rather than past or future intended use which is determinative. Just because the purpose of the structure is to serve as a dwelling does not in itself make the dwelling inhabited; it is necessary that someone be currently using this structure as a dwelling at the time of the alleged crime. It is the intent and not the length of the absence that controls.
A dwelling house may be currently used for dwelling purposes even though the occupants are temporarily absent so long as any of such occupants intend, at the time of the alleged crime, to reoccupy it for dwelling purposes within a short period of time.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of Inhabited Dwelling—People v. Hernandez (1992) 9 CA4th 438, 441-42 held that a burglarized apartment was occupied because the occupants—although they had yet to sleep there—had left their belongings in the apartment and intended to occupy it. Hernandez concluded that an instruction similar to the one above “adequately expressed the concepts of occupancy and habitation.” (See also People v. Fond (1999) 71 CA4th 127 [definition of inhabited dwelling for purposes of burglary includes room in locked psychiatric hospital].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.03b.
F 965.5 Inst 4 Shooting At Inhabited Dwelling: Specific Intent To Hit The Structure Or Reckless Disregard Of Probable Consequences
*Add the following element to CC 965:
The defendant:
A. Intended to hit the building, or
B. If there was no intent to hit the building, there was a reasonable likelihood that the building would be hit and the defendant acted with conscious indifference to and reckless disregard for that likelihood.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Required Intent—In People v. Chavira (1970) 3 CA3d 988, 990, the defendant was convicted of maliciously discharging a firearm at an inhabited dwelling in violation of PC 246. On appeal, he argued his conviction should be reversed because he had not intended for his shots to strike the dwelling in question, but had, instead, intended for them to strike people outside the dwelling. (Id. at 992.) The court rejected this argument holding as follows:
The jury was instructed that, to convict under section 246, the shooting must have been with the intent to hit the building. [Footnote.] An act done with reckless disregard of probable consequences is an act done with “intent” to cause such result within the meaning of the words used in the instruction.
Defendant and his associates[] engaged in a fusillade [footnote] of shots directed primarily at persons standing close to a dwelling. The jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient “intent” to satisfy the statutory requirement. (Id., at 993, emphases added.)
Subsequent case law has been consistent with Chavira, as several cases have echoed the Chavira court’s pronouncement that the crime described in section PC 246 is a general intent crime. (People v. Hoover (1974) 12 C3d 875, 882 n5; People v. Froom (1980) 108 CA3d 820, 826; People v. Williams (1980) 102 CA3d 1018, 1028-1029.) Similarly, several cases have echoed Chavira‘s pronouncement that a defendant may be convicted of violating Penal Code section 246 absent evidence of specific intent, provided he/she willfully discharged his/her firearm with conscious indifference to or reckless disregard for the fact the resultant gunshots would likely strike an occupied dwelling. (People v. Cruz (1995) 38 CA4th 427, 432-433; People v.White (1992) 4 CA4th 1299, 1303-1304; People v. Williams, supra, 102 CA3d at 1029.
Accordingly, CC 965 should be modified to require the jury to find either the intent element or the reckless disregard/conscious indifference element.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.03d.
F 965.6 Shooting At Inhabited House Or Occupied Motor Vehicle—Defense Theories
F 965.6 Inst 1 Discharge Of A Firearm: Negation Of Knowledge Element
*Add to CC 965:
To prove that the defendant acted willfully, the prosecution must establish beyond a reasonable doubt that the defendant intended to discharge the firearm with actual knowledge of the facts [, including the reasonable, natural and probable consequences of discharging the firearm,] which bring the act within the provisions of the statute under which the defendant is charged. Evidence that the defendant [acted under an honest mistake of fact as to the act committed] [was intoxicated] [was suffering from mental disease, defect or disorder] [was suffering from physical trauma], should be considered in deciding whether defendant had the requisite knowledge and intent to discharge the firearm. If from all the evidence you have a reasonable doubt whether the defendant had the requisite knowledge and intent, you must find that [he] [she] did not have such knowledge and intent and find [him] [her] not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Knowledge Requirement—To unlawfully discharge a firearm, defendant must have knowingly intended to discharge it. (In re Jerry R. (1994) 29 CA4th 1432, 1437, 1438-1440.) Hence, a defendant who believed that the firearm he or she discharged was unloaded, for example, would not be guilty of a violation of section PC 246.3. (Id. at p. 1440; see also People v. Robertson (2004) 34 C4th 156, 167-68.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 9.03.3c.
F 965.7 Shooting At Inhabited House Or Occupied Motor Vehicle—Preliminary Fact Issues [Reserved]
F 965.8 Shooting At Inhabited House Or Occupied Motor Vehicle— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 965.9 Shooting At Inhabited House Or Occupied Motor Vehicle—Lesser Offense Issues
F 965.9 Note 1 Shooting At Inhabited Dwelling Or Occupied Motor Vehicle (PC 246): Grossly Negligent Discharge Of A Firearm (PC 246.3) As Lesser Included
See People v. Ramirez (2009) 45 C4th 980, 985-86.
F 965.9 Note 2 Shooting At An Occupied Vehicle: ADW Is Not An LIO (PC 246)
See FORECITE F 965 Note 7.
F 965.9 Note 3 Shooting At Inhabited Dwelling: Lesser Offense Of Violating City Ordinance (PC 246)
See FORECITE F 965 Note 12.