Return to CALJIC Part 9-12 – Contents
F 9.03.3 n1 Improper To Refer To The Prosecution as “The People.”
Reference to the prosecution as “The People” may implicate the defendant’s state and federal constitutional rights to due process and fair trial by jury. (See FORECITE F 0.50d.) Any reference to “The People” should be changed to “The Prosecution.”
F 9.03.3 n2 Attack By Animal Justifying Self Defense.
See FORECITE F 5.55 n2.
F 9.03.3a
Grossly Negligent Discharge of Firearm
(PC 246.3)
*Modify ¶ 3 of CJ 9.03.3 to provide as follows:
In order to prove such crime, each of the following elements must be proved: ¶ 1) The defendant unlawfully discharged a firearm; 2) The defendant did so intentionally; and 3) The defendant did so in a grossly negligent manner which could result in the injury or death of a person.
Points and Authorities
These statutory elements were articulated in People v. Alonzo (93) 13 CA4th 535, 538-40 [16 CR2d 656]. The Alonzo definition differs from the CALJIC instruction by including the requirement that, beyond an act of gross negligence, the discharge of the firearm must have otherwise been unlawful. (See PC 246.3.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 9.03.3b
Negation Of Knowledge Element
*Add to CJ 9.03.3:
[See FORECITE F 1.20b.]
F 9.03.3c
Discharge Of A Firearm: Negation Of Knowledge Element
*Add to CJ 9.03.3:
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. If the evidence shows 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], you should consider such fact[s] in determining 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
PC 246.3 requires proof that the defendant intended to discharge the firearm. (In re Jerry R. (94) 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.)
