CALCRIM No. 525. Second Degree Murder: Discharge From Motor Vehicle (Pen. Code, § 190(d))
Judicial Council of California Criminal Jury Instructions (2024 edition)
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525.Second Degree Murder: Discharge From Motor Vehicle (Pen.
Code, § 190(d))
If you find the defendant guilty of second degree murder [as charged in
Count ], you must then decide whether the People have proved
the additional allegation that the murder was committed by shooting a
firearm from a motor vehicle.
To prove this allegation, the People must prove that:
1. (The defendant/ <insert name or description of
principal if not defendant>) killed a person by shooting a firearm
from a motor vehicle;
2. (The defendant/ <insert name or description of
principal if not defendant>) intentionally shot at a person who was
outside the vehicle;
AND
3. When (the defendant/ <insert name or description of
principal if not defendant>) shot a firearm, (the defendant/
<insert name or description of principal if not
defendant>) intended to inflict great bodily injury on the person
outside the vehicle.
[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 motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor
scooter/bus/school bus/commercial vehicle/truck tractor and trailer/
<insert other type of motor vehicle>).]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[The term[s] (great bodily injury[,]/ firearm[,]/ [and] motor vehicle) (is/are)
defined in another instruction to which you should refer.]
[The People must prove that the defendant intended that the person shot
at suffer great bodily injury when (he/she/ <insert name or
description of principal if not defendant>) shot from the vehicle. However,
the People do not have to prove that the defendant intended to injure
the specific person who was actually killed.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
that this allegation has not been proved.
270
New January 2006; Revised September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
sentencing enhancement. (See People v. Marshall (2000) 83 Cal.App.4th 186,
193-195 [99 Cal.Rptr.2d 441]; Apprendi v. New Jersey (2000) 530 U.S. 466,
475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].)
The statute does not specify whether the defendant must personally intend to inflict
great bodily injury or whether accomplice liability may be based on a principal who
intended to inflict great bodily injury even if the defendant did not. The instruction
has been drafted to provide the court with both alternatives in element 3.
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.
Give the bracketed paragraph that begins with “The People must prove that the
defendant intended,” if the evidence shows that the person killed was not the person
the defendant intended to harm when shooting from the vehicle. (People v. Sanchez
(2001) 26 Cal.4th 834, 851, fn. 10 [111 Cal.Rptr.2d 129, 29 P.3d 209].)
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].)
AUTHORITY
• Second Degree Murder, Discharge From Vehicle. Pen. Code, § 190(d).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 186.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][a], [2][a][vii], [4][c] (Matthew Bender).
HOMICIDE CALCRIM No. 525
271
© Judicial Council of California.
