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Name: People v. Lam
Case #: D043313
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/04/2004

The prosecution need not prove lack of consent in order to convict a defendant of discharging a firearm at an unoccupied vehicle. The defendant was charged with a violation of Penal Code section 247, subdivision (b), and requested a jury instruction under CALJIC 9.03.2, which states that a person who discharges a firearm at an unoccupied vehicle with the consent of the vehicle’s owner is not guilty of the crime. The court denied the requested instruction, relying on the committee note stating that the instruction is only required where consent is an issue. On appeal the defendant argued that lack of consent was an element of the offense that must be proven beyond a reasonable doubt. The Court of Appeal rejected this argument, noting that where a statute first defines an offense in unconditional terms and then specifies an exception to its applicability, the exception is not an element of the crime but an affirmative defense which must be raised and proven by the defendant. Because no facts here indicated that consent was an issue, the judgment was affirmed.