SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 970 Shooting Firearm In Grossly Negligent Manner (PC 246.3)
TABLE OF CONTENTS
F 970.1 Titles And Identification Of Parties
F 970.1 Inst 1 Shooting Firearm In Grossly Negligent Manner—Title
F 970.1 Inst 2 Identification Of Prosecution And Defendant
F 970.2 Shooting Firearm In Grossly Negligent Manner—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 970.3 Shooting Firearm In Grossly Negligent Manner—Language That Is Argumentative, Confusing, Etc.
F 970.3 Inst 1 Specification Of Cross-Referenced Instruction
F 970.4 Shooting Firearm In Grossly Negligent Manner—Burden Of Proof Issues
F 970.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 970.5 Shooting Firearm In Grossly Negligent Manner—Elements And Definitions
F 970.5 Inst 1 Include Definitional Elements Of Gross Negligence In Enumerated Elements
F 970.5 Inst 2 Gross Negligence “Requires” More Than Ordinary Negligence
F 970.5 Inst 3 Gross Negligence: Requirement Of Risk To Human Beings
F 970.6 Shooting Firearm In Grossly Negligent Manner—Defense Theories [Reserved]
F 970.6 Inst 1 Defense Theory That Defendant Believed The Firearm Was Unloaded
F 970.7 Shooting Firearm In Grossly Negligent Manner—Preliminary Fact Issues [Reserved]
F 970.8 Shooting Firearm In Grossly Negligent Manner—Unanimity/Duplicity/Multiplicity [Reserved]
F 970.9 Shooting Firearm In Grossly Negligent Manner—Lesser Offense Issues
F 970.9 Note 1 Shooting Firearm In Grossly Negligent Manner (PC 246.43) Is Lesser Included Of Shooting At Inhabited Dwelling Or Occupied Motor Vehicle (PC 246)
Return to Series 900 Table of Contents.
F 970.1 Titles And Identification Of Parties
F 970.1 Inst 1 Shooting Firearm In Grossly Negligent Manner—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 970.1 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 970.2 Shooting Firearm In Grossly Negligent Manner—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 970.3 Shooting Firearm In Grossly Negligent Manner—Language That Is Argumentative, Confusing, Etc.
F 970.3 Inst 1 Specification Of Cross-Referenced Instruction
*Modify CC 970, paragraph 7, as follows [added language is underlined; deleted language is stricken]:
[The term[s] (great bodily injury/ [and] firearm) (is/are) defined in another Instruction(s)______ to which you should refer must apply to this instruction.]
Points and Authorities
See FORECITE F 524.3 Inst 2.
F 970.4 Shooting Firearm In Grossly Negligent Manner—Burden Of Proof Issues
F 970.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 970.5 Shooting Firearm In Grossly Negligent Manner—Elements And Definitions
F 970.5 Inst 1 Include Definitional Elements Of Gross Negligence In Enumerated Elements
*Replace CC 970, Element 2, with the following:
2. The defendant did the shooting with gross negligence by:
A. Doing the shooting in a reckless way that created a high risk of death or great bodily injury to [_____________<name of victim>] [one or more human beings];
AND
B. A reasonable person in the defendant’s situation, considering all the circumstances as they were known to and appeared to the defendant, would have known that acting as the defendant did would create such a risk;
AND
C. The way the defendant acted was so different from the way an ordinary careful person would have acted in the same situation that the defendant’s act amounted to disregard for human life or indifference to the consequences of the act.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definitional Elements Should Be Included In The Enumerated Elements—The above instruction incorporates the gross negligence definition of CC 970 (paragraphs 3 & 4) into the gross negligence element. Because the definition of gross negligence includes specific elements which the prosecution must prove beyond a reasonable doubt, it should be included in the enumerated elements. (See CALCRIM User’s Guide, p.2, “Titles And Definitions.”) Otherwise, there is a danger the jurors will not consider the definition as part of the element. (See generally People v. Danks (2004) 32 C4th 269 [recognizing that jurors make unwarranted assumptions about instructions which are not specifically spelled out]; see generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 400.4 Inst 1; F 103.2 Inst 1.)
[See also FORECITE F 417.5 Inst 2.]
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
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.
F 970.5 Inst 2 Gross Negligence “Requires” More Than Ordinary Negligence
*Modify CC 970, paragraph 3, as follows [added language is underlined; deleted language is stricken]:
[Gross negligence involves requires more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Proof Of Elements Is “Required”—The components of criminal negligence should be characterized as required elements. (See generally In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 400.4 Inst 1.)
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.
F 970.5 Inst 3 Gross Negligence: Requirement Of Risk To Human Beings
*Modify CC 970, paragraph 3, Element 1, as follows
1. He or she acts in a reckless way that creates a high risk of death or great bodily injury [to _________________ <name of victim.>] [one or more human beings];
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Risk To Human Life As Required Element—The enumerated elements of criminal negligence in CALCRIM 970 fail to relate the risk to human beings. Even though the next paragraph does refer to “disregard for human life” it should be included in the defining elements. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 400.4 Inst 1.)
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.
F 970.6 Shooting Firearm In Grossly Negligent Manner—Defense Theories[Reserved]
F 970.6 Inst 1 Defense Theory That Defendant Believed The Firearm Was Unloaded
*Add to CC 970 [CALCRIM 3400 format]:
One element the prosecution must prove is that the defendant intentionally shot a firearm. The defendant contends (he/she) did not intentionally shoot the firearm because he believed that it was unloaded. However, the defendant does not need to prove that he believed the gun was unloaded. The prosecution must prove beyond a reasonable doubt that the defendant knew the firearm was loaded.
If you have a reasonable doubt about whether the defendant intentionally shot a firearm, or about any other essential fact or element necessary to prove the defendant guilty, you must find (him/her) not guilty.
[NOTE: This instruction is adapted from CC 3400. However, the last sentence has been augmented in light of the prosecution’s duty to prove all essential facts and elements even if the defense relies on a specific theory.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Relating Defense Theory To Burden Of Proof – See FORECITE F 315.1.2 Inst 2.
Belief That Firearm Was Unloaded As Defense Theory – PC 246.3 requires proof that the defendant intended to discharge the firearm. (In re Jerry R. (1994) 29 CA4th 1432, 1437, 1438–1440.) “A defendant who believed that the firearm he or she discharged was unloaded, for example, would not be guilty of a violation of [PC] 246.3. [Citation.]” (People v. Robertson (2004) 34 C4th 156, 167-168.)
Identification Of Parties – See FORECITE F 100.2 Note 1.
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.
F 970.7 Shooting Firearm In Grossly Negligent Manner—Preliminary Fact Issues [Reserved]
F 970.8 Shooting Firearm In Grossly Negligent Manner—Unanimity/Duplicity/Multiplicity [Reserved]
F 970.9 Shooting Firearm In Grossly Negligent Manner—Lesser Offense Issues
F 970.9 Note 1 Shooting Firearm In Grossly Negligent Manner (PC 246.43) Is Lesser Included Of Shooting At Inhabited Dwelling Or Occupied Motor Vehicle (PC 246)
See People v. Ramirez (2009) 45 C4th 980, 985-86.
