Supreme Court of California Justia
Citation 45 Cal. 4th 980, 201 P.3d 466, 89 Cal. Rptr. 3d 586, 45 Cal. 4th 1062b- opinion modified on March 18, 2009- no change in judgment.

People v. Ramirez

Filed 3/18/09


IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S156775
v.
) Ct.App.
5
F050212
JESSIE JOSE RAMIREZ,
Madera
County
Defendant and Appellant.
Super. Ct. No. MCR021366

MODIFICATION OF OPINION
THE COURT:
The opinion filed February 26, 2009, and published at __ Cal.4th __, is
modified by deleting the following two sentences from footnote 4: “An
enhancement for participation in a criminal street gang (§ 186.22, subd. (b)(1))
applied to all but the child endangerment conviction. This enhancement was
based on testimony that defendant was a member of a criminal street gang, that
gang members confers status through acts of violence, and that killing a police
officer achieves the highest status.”
This modification does not affect the judgment.


Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Is grossly negligent discharge of a firearm (Pen. Code, section 246.3) a lesser included offense of malicious and willful discharge of a firearm at an inhabited dwelling (Pen. Code, section 246)?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Wed, 03/18/200945 Cal. 4th 980, 201 P.3d 466, 89 Cal. Rptr. 3d 586, 45 Cal. 4th 1062b- opinion modified on March 18, 2009- no change in judgment.S156775MReview - Criminal Appealclosed; remittitur issued

PEOPLE v. GARCIA (S157870)


Parties
1The People (Plaintiff and Respondent)
Represented by Frank Brian Alvarez
Office of the Attorney General
2550 Mariposa Mall, Suite 5090
Fresno, CA

2Ramirez, Jessie Jose (Defendant and Appellant)
Pelican Bay State Prison
Represented by Joseph C. Shipp
Attorney at Law
P.O. Box 20347
Oakland, CA


Opinion Authors
OpinionJustice Carol A. Corrigan

Disposition
Feb 26 2009Opinion: Reversed

Dockets
Oct 1 2007Received premature petition for review
  Jessie Jose Ramirez, defendant and appellant by Joseph Shipp, CA-appointed counsel [Petition to be filed on October 9. 2007.)
Oct 9 2007Case start: Petition for review filed
 
Oct 9 2007Record requested
 
Oct 11 2007Received Court of Appeal record
  two doghouses
Nov 28 2007Time extended to grant or deny review
  The time for granting or denying review in the above-entitled matter is hereby extended to and including January 7, 2008, or the date upon which review is either granted or denied.
Dec 12 2007Petition for review granted; issues limited (criminal case)
  The petition for review is granted. The issue to be briefed and argued is limited to the following: Is grossly negligent discharge of a firearm (Pen. Code, ? 246.3) a lesser included offense of discharge of a firearm at an inhabited dwelling (Pen. Code, ? 246)? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Dec 28 2007Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Joseph C. Shipp is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before 30 days from the date of this order.
Jan 18 2008Opening brief on the merits filed
  Jessie Ramirez, defendant and appellant Joseph Shipp, appointed counsel
Jan 18 2008Request for judicial notice filed (granted case)
  Jessie Ramirez, defendant and appellant with one volume of appendix
Feb 14 2008Compensation awarded counsel
  Atty Shipp
Feb 19 2008Request for extension of time filed
  For respondent to file the answer brief on the merits, to 3-20-08.
Feb 21 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including March 20, 2008.
Mar 17 2008Answer brief on the merits filed
  the People, plaintiff and respondent Brian Alvarez, Dep. A.G.
Mar 27 2008Reply brief filed (case fully briefed)
  Jessie Jose Ramirez, appellant by Joseph Shipp, counse.
Dec 10 2008Case ordered on calendar
  to be argued on Thursday, January 8, 2009, at 1:30 p.m., in San Francisco
Jan 9 2009Cause argued and submitted
 
Feb 25 2009Notice of forthcoming opinion posted
 
Feb 26 2009Opinion filed: Judgment reversed
  The judgment of the Court of Appeal is reversed. The matter is remanded with directions to reverse three of the grossly negligent shooting counts. Majority Opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Mar 3 2009Request for modification of opinion filed
  Jessie Ramirez, defendant and appellant Joseph Shipp, counsel
Mar 18 2009Request for modification granted
 
Mar 18 2009Opinion modified - no change in judgment
 
Mar 19 2009Compensation awarded counsel
  Atty Shipp
Apr 2 2009Remittitur issued
 

Briefs
Jan 18 2008Opening brief on the merits filed
 
Mar 17 2008Answer brief on the merits filed
 
Mar 27 2008Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 18, 2011
Annotated by brian murdock

(Opinion by J. Corrigan, C.J. George, Kennard, Baxter, Werdegar, Chin, and Moreno, JJ. concurring)

Facts:
In response to a report that a man was holding a gun to a woman’s head, several Chowchilla police officers rushed to the apartment where the reported standoff was occurring. Immediately after the officers announced their presence and demanded that the occupants come out of the apartment, a shotgun was fired through a window that the police had just knocked on. As the officers proceeded to take cover, somewhere between two and six more shots were fired from the window.

The defendant, Mr. Jesse Ramirez, did eventually surrender, however after an investigation the officers discovered that several shots had struck neighboring apartments including one where an eight-month-old girl was sleeping. Ten discharged shells were found in the defendant’s apartment.

Defendant maintains that he was not aiming at the officers or anyone specific.

Procedural History:
At trial the Defendant was convicted of 10 counts of grossly negligent shooting and three counts of shooting at an inhabited dwelling. He was sentenced to 15 years to life plus 30 years 4 months. He contends that three of his convictions of grossly negligent shooting should be reversed because they are a lesser included offense of shooting at an inhabited dwelling, thus violating California common law. The Court of Appeal affirmed the Trial Court’s judgment.

Issue:
Can the crime of shooting at an inhabited dwelling be committed without also committing a grossly negligent shooting? Was the Defendants conviction of negligent shooting a lesser-included offense of his conviction for shooting at an inhabited dwelling?

Holding:
Yes, the offense of negligent shooting is a lesser-included offense of shooting at an inhabited dwelling. No, the crime of shooting at an inhabited dwelling cannot be committed without also committing a grossly negligent shooting.

Reasoning:
Although California Penal Code §954 indicates that a single act or course of conduct can lead to convictions “of any number of the offenses charged,”(see People v Montoya, 16 Cal.Rptr.3d 902 (2004); People v Ortega clarified the rule by carving out an exception that prohibits multiple convictions based on “necessarily included offenses.” People v Ortega, 80 Cal.Rptr.2d 489 (1998).

To determine whether one act is considered a lesser included offense courts generally analyze each alleged offense to see if , “all the statutory elements of the lesser offense are included within those of the greater offense.” People v Ramirez, 45 Cal.4th 980 (2009).

Here, the charge of shooting at inhabited dwelling requires 1)acting willfully and maliciously and 2)shooting at an inhabited house.(See Pen. Code, § 246)

The charge of negligent shooting requires 1)the defendant unlawfully discharge 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. (See Pen. Code § 246.3)

The California Attorney General argued that §246.3 is not a lesser included offense of §246 because §246.3 requires that the shot(s) fired be intended for or at a specific person. The California Supreme Court invoked legislative history to dispute that notion and decided that an actual person need not be in close proximity to the gun-shot to constitute grossly negligent shooting. In fact the law was enacted in response to celebratory gunfire that tends to risk serious injury in populated areas that can likely never be traced back to the perpetrator.

The California Supreme Court articulated that both offenses require that the defendant willfully fire a gun in a manner where injury or death of a person is a reasonable outcome. Thus, all the elements of §246.3 are also elements required to establish a §246 offense.

Ruling:
The Court of Appeal is reversed. The case is remanded and three of the grossly negligent shooting counts are reversed.

Cases and references:
People v Montoya, 16 Cal.Rptr.3d 902 (2004)

People v Ortega, 80 Cal.Rptr.2d 489 (1998).

Pen. Code § 246.3

Pen. Code, § 246

Pen. Code § 954

Tags:
Conviction of lesser or included offenses, Different offenses in same transaction, Elements of crime, Included offenses, Shooting or discharging, Shooting into an inhabited dwelling, Negligent shooting, Fire arm, Weapons, Intent

By Brian Murdock