Supreme Court of California Justia
Docket No. S140032
People v. Licas

Filed 6/18/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S140032
v.
Ct.App.
4/3
G034891
NORMAN PAUL LICAS,
Orange
County
Defendant and Appellant.
Super. Ct. No. 03NF3780

Is the crime of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) a
lesser included offense of shooting at another person from a vehicle (Pen. Code,
§ 12034, subd. (c))?1 In a published opinion, the Court of Appeal here held that
the assault offense is not a lesser included offense of shooting from a vehicle; the
latter offense does not include the element that the shooter have a “present ability”
to commit a violent injury on another person, a requirement of the offense of
assault with a firearm. On the other hand, in In re Edward G. (2004) 124
Cal.App.4th 962 (Edward G.), the Court of Appeal came to the opposite
conclusion. We granted review to resolve the conflict.
We agree with the Court of Appeal in this case and conclude that assault
with a firearm is not a lesser included offense of shooting from a vehicle.

1
Unless otherwise stated, all statutory references are to the Penal Code.
1


I. FACTUAL AND PROCEDURAL HISTORY
In June 2002, Eric Galvan, his girlfriend, Lisa Flores, and their baby
daughter were staying at an inn. Galvan and Flores had borrowed $200 from
defendant about a month earlier. Although they had agreed to pay back defendant
on the first day of the month, they did not pay defendant as agreed.
On June 10, 2002, Flores was standing with her baby outside the inn when
she saw defendant in his car in the parking lot. Flores returned to her room and
told Galvan about defendant’s presence. They went outside. Galvan approached
defendant’s car to give defendant some money, while Flores waited with the baby
at the entrance of the inn.
Galvan crouched down outside the driver’s side door, while defendant
remained inside the car. Flores saw Galvan hand defendant some money and they
talked for awhile. She then “saw the barrel of the gun come out of the window” of
defendant’s car. She screamed and heard about six or seven shots. During the
shooting, Galvan jumped up and ran towards Flores and the baby to get them
inside the inn. Flores testified that defendant did not get out of the car while the
shots were fired. Once they were inside, Flores noticed that Galvan had been shot.
Galvan survived.
Testimony from two witnesses in the parking lot indicated that defendant
might have been standing outside the car during the shootings.
That day, defendant admitted to a friend that he had shot Galvan.
A jury found defendant guilty of shooting at another person from a vehicle
(§ 12034, subd. (c)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)),
and that various charged weapons and great bodily injury enhancements were true.
After finding that defendant had suffered multiple prior serious felony convictions,
the trial court imposed a lengthy term of imprisonment.
2
The Court of Appeal affirmed the judgment. Disagreeing with Edward G.,
supra, 124 Cal.App.4th 962, the court held that assault with a firearm is not a
lesser included offense of shooting at another person from a vehicle.
Consequently, it determined that the trial court did not err in failing to instruct the
jury on the assault offense.
We granted defendant’s petition for review.
II. DISCUSSION
Defendant maintains that the trial court erred by failing to instruct the jury
sua sponte on assault with a firearm (§ 245, subd. (a)(2)), as a lesser included
offense of shooting at another person from a vehicle (§ 12034, subd. (c)).
“We apply the independent or de novo standard of review to the failure by
the trial court to instruct on an assertedly lesser included offense. [Citation.] A
trial court must instruct the jury sua sponte on a lesser included offense only if
there is substantial evidence, ‘ “that is, evidence that a reasonable jury could find
persuasive” ’ [citation], which, if accepted, ‘ “would absolve [the] defendant from
guilt of the greater offense” [citation] but not the lesser’ [citation].” (People v.
Cole (2004) 33 Cal.4th 1158, 1218.) “[A] lesser offense is necessarily included in
a greater offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the lesser
offense, such that the greater cannot be committed without also committing the
lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
Here, the allegations in the information regarding the shooting-from-a-
vehicle offense generally tracked the statutory language of section 12034,
subdivision (c). Thus, the parties agree that the elements test applies in this case.
Section 12034, subdivision (c), provides, “Any person who willfully and
maliciously discharges a firearm from a motor vehicle at another person other than
3
an occupant of a motor vehicle is guilty of a felony punishable by imprisonment in
state prison for three, five, or seven years.”
Section 7, subdivision 1, states: “ ‘willfully’ . . . implies simply a purpose
or willingness to commit the act . . . referred to. It does not require any intent to
violate law, or to injure another, or to acquire any advantage.” “Maliciously” is
defined as “a wish to vex, annoy, or injure another person, or an intent to do a
wrongful act, established either by proof or presumption of law.” (§ 7, subd. 4.)
Conviction under a statute proscribing conduct done “willfully and maliciously”
does not require proof of a specific intent. (People v. Atkins (2001) 25 Cal.4th 76,
85.)
Section 245, subdivision (a)(2), punishes “[a]ny person who commits an
assault upon the person of another with a firearm.” Assault is defined as “an
unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.” (§ 240, italics added.) “Once a defendant has attained the
means and location to strike immediately he has the ‘present ability to injure.’ ”
(People v. Valdez (1985) 175 Cal.App.3d 103, 113 (Valdez).)
The Attorney General argues assault with a firearm is not a lesser included
offense of shooting at another person from a vehicle because the latter offense
(unlike assault) does not require that the perpetrator have a present ability to
commit a violent injury on another person. We agree.
“In construing a statute, our role is to ascertain the Legislature's intent so as
to effectuate the purpose of the law. [Citation.] In determining intent, we must
look first to the words of the statute because they are the most reliable indicator of
legislative intent. [Citation.] If the statutory language is clear and unambiguous,
the plain meaning of the statute governs. [Citation.]” (People v. Lopez (2003) 31
Cal.4th 1051, 1056.) In other words, if there is “no ambiguity or uncertainty in the
language, the Legislature is presumed to have meant what it said,” and it is not
4
necessary to “resort to legislative history to determine the statute’s true meaning.”
(People v. Cochran (2002) 28 Cal.4th 396, 400-401.)
Unlike the statutory definition of assault, the language of section 12034,
subdivision (c), does not require that one who shoots at someone from inside a
vehicle must have a present ability to cause that person violent physical injury.
Section 240, which defines assault, has not been amended since its enactment in
1872. (People v. Williams (2001) 26 Cal.4th 779, 784.) “[T]he Legislature is
deemed to be aware of existing laws and judicial decisions in effect at the time
legislation is enacted and to have enacted and amended statutes ‘ “ in the light of
such decisions as have a direct bearing upon them.” ’ [Citations.]” (People v.
Overstreet (1986) 42 Cal.3d 891, 897.) “ ‘Where a statute, with reference to one
subject contains a given provision, the omission of such provision from a similar
statute concerning a related subject is significant to show that a different intention
existed.’ [Citation.]” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 735.)
Thus, when the Legislature added subdivision (c) to section 12034 in 1987 (Stats.
1987, ch. 1147, § 3, p. 4059; see Historical and Statutory Notes, 51D West’s Ann.
Pen. Code (2000 ed.) foll. § 12034, p. 280), it presumably was aware of the
present-ability requirement in the closely related assault statute, but intended to
omit it as an element of the shooting offense.
A similar claim—that assault with a deadly weapon is included in the
analogous crime of willfully and maliciously discharging a firearm at an occupied
vehicle—has been made and rejected. (In re Daniel R. (1993) 20 Cal.App.4th
239, 247 (Daniel R.); People v. Spence (1970) 3 Cal.App.3d 599, 603 (Spence),
disapproved on other grounds in People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 8.)
Vehicle Code section 23110, subdivision (b), then provided that “Any person who
with intent to do great bodily injury maliciously and wilfully throws or projects
any rock, brick, bottle, metal, or other missile, or projects any other substance
5
capable of doing serious bodily harm, or discharges a firearm at such vehicle or
occupant thereof is guilty of a felony . . . .” (Spence, supra, 3 Cal.App.3d at p.
602, italics added.)
Spence, supra, 3 Cal.App.3d 599, held that unlike assault with a deadly
weapon, the willful and malicious discharge of a firearm at a vehicle does not
contain the element of the present ability to commit a violent injury. Comparing
the texts of the Vehicle Code and assault statutes, the court reasoned, “The
Vehicle Code violation is limited to attacks aimed at vehicles or their occupants,
but it does not require in its commission . . . the present ability to commit a violent
injury. The phrase ‘capable of doing serious bodily harm’ in the Vehicle Code
section refers to a quality of the missile or the substance which is thrown or
projected. The statute does not seem to require that the person throwing it have
the present ability to inflict the injury, even though he is using a dangerous missile
with intent to injure.”2 (Spence, supra, 3 Cal.App.3d at p. 603.)

2
A 1976 amendment to Vehicle Code section 23110, subdivision (b), deleted
the language “or discharges a firearm.” (Stats. 1976, ch. 1119, § 2, p. 5023.) The
provisions relating to the discharge of a firearm formerly covered by Vehicle Code
section 23110 were added to Penal Code section 246 in 1976. (See Historical and
Statutory Notes, 67 West’s Ann. Veh. Code (2000 ed.) foll. § 23110, p. 332;
Historical and Statutory Notes, 48 West’s Ann. Pen. Code (1999 ed.) foll. § 246,
p. 170.)

The legislative history of section 12034 indicates that the Legislature
patterned subdivision (c) of that section on section 246. A Senate Committee on
Judiciary report on the legislation that added subdivision (c) in its current form
stated, “Penal Code § 246 provides for a penalty of 3, 5, or 7 years in state prison,
or at least 6 months in county jail, for maliciously and willfully discharging a
firearm at an occupied vehicle. [¶] This bill [Assem. Bill 766] would establish a
3, 5, or 7 year straight felony for firing a firearm from a motor vehicle at a
person.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 766 (1987-1988
Reg. Sess.) as amended July 1987, p. 4.)
6



Also relying on the words of the applicable statutes, the court in Daniel R.
stated, “This element of the offense of assault [the present ability to commit a
violent injury on another] does not appear to be necessary to a conviction of
maliciously discharging a firearm at an occupied vehicle [under section 246].”
(Daniel R., supra, 20 Cal.App.4th at p. 247.) Section 246 contains language
similar to section 12034, subdivision (c). It provides, in pertinent part, that: “Any
person who shall maliciously and willfully discharge a firearm at an . . . occupied
motor vehicle . . . is guilty of a felony . . . .” The court reasoned, “If one can
violate section 246 while discharging a firearm at a vehicle at a location beyond
the reasonable range or striking distance of a human target, it appears one may
violate section 246 without having the ‘present ability’ to inflict an injury on the
person of another.” (Daniel R., supra, 20 Cal.App.4th at p. 247.) Consequently,
Daniel R. concluded that assault with a deadly weapon is not necessarily included
in the crime of willfully and maliciously discharging a firearm at an occupied
vehicle. (Ibid.)
In this case, the Court of Appeal correctly relied on the fact that the
language of section 12034, subdivision (c), does not impose a present-ability
requirement. Instead, as the court noted, “The offense of shooting from a vehicle
under section 12034, subdivision (c) requires that the perpetrator shoot from inside
a vehicle ‘at’ someone who is not inside a vehicle, and do so willfully and
maliciously. (§ 12034, subd. (c).) Webster’s Third New International Dictionary
(1993) at page 136 states the term ‘at’ is ‘used as a function word to indicate that
which is the goal of an action or that toward which an action or motion is
directed.’ The word ‘at’ does not necessarily connote immediate presence or a
location necessarily within striking distance of an intended target.”
On the other hand, Edward G., supra, 124 Cal.App.4th 962—in holding
that assault with a firearm is necessarily included in the offense of shooting at
7
another person from a vehicle—ignored the statutory language, i.e., the absence of
an express present-ability requirement in the latter offense. Rather, the Court of
Appeal simply relied on Valdez, supra, 175 Cal.App.3d 103. It stated: “We find
the reasoning of Valdez persuasive. We conclude that it follows from Valdez that
a person who violates section 12034, subdivision (c), necessarily has the present
ability to commit a violent injury on the person of another.” (Edward G., supra,
124 Cal.App.4th at p. 969.) Edward G. further concluded that “It is not possible to
‘willfully and maliciously [discharge] a firearm’ ‘at another person’ (§ 12034,
subd. (c)) without attempting ‘to commit a violent injury on the person of another’
‘with a firearm’ while having a ‘present ability’ to do so (§§ 240, 245, subd.
(a)(2)).” (Edward G., supra, 124 Cal.App.4th at p. 968.)
However, Edward G.’s reliance on Valdez is misplaced for several reasons.
First, Valdez did not involve the offense of shooting at another person from a
vehicle (§ 12034, subd. (c)), but dealt with whether substantial evidence supported
the defendant’s assault with a firearm conviction. (§ 245, subd. (a)(2).) There, the
issue was whether the present-ability-to-injure element of the crime of assault was
satisfied; the defendant fired three rounds from a loaded gun at the victim who,
unbeknownst to the defendant, was behind a bulletproof window. Valdez
concluded that an assault had occurred because the defendant fired three rounds
from a fully operational, loaded gun in the direction of the victim who was “easily
within striking distance.” (Valdez, supra, 175 Cal.App.3d at p. 113.) “Once a
defendant has attained the means and location to strike immediately he has the
‘present ability to injure.’ . . . . [T]he victim’s avoidance or preventive measures
would not alter the fact the defendant had acquired the means and maneuvered
into a location to immediately injure his victim.” (Ibid.) Thus, Valdez addressed
the scope of the present-ability element only in the context of the crime of assault
8
with a firearm, without addressing the elements of the offense of shooting at
another person from a vehicle.
Second, Edward G. misread Valdez. Quoting from Valdez, Edward G.
reasoned: “If a perpetrator is in a position to fire ‘at’ a person, his or her gun is
loaded, and he or she actually discharges it at the person, then the perpetrator
necessarily has ‘maneuvered himself into such a location and equipped himself
with sufficient means that he appears to be able to strike immediately at his
intended victim.’ (People v. Valdez, supra, 175 Cal.App.3d at p. 112.)” (Edward
G., supra, 124 Cal.App.4th at p. 969, italics added.) Thus, it seems that Edward
G. focused on the appearance of the ability to strike.
Although Valdez used the word “appears,” other language in the opinion
makes clear that a necessary requirement of “present ability” is the attainment of
the means and location to strike immediately. (Valdez, supra, 175 Cal.App.4th at
pp. 112-113 [“acquired the means to inflict serious injury and positioned
themselves within striking distance”; “attained the means and location to strike
immediately”; “acquired the means and maneuvered into a location to immediately
injure his victim”]; see also People v. Colantuono (1994) 7 Cal.4th 206, 219
[“ ‘Holding up a fist in a menacing manner, drawing a sword, or bayonet,
presenting a gun at a person who is within its range, have been held to constitute
an assault’ ” (italics added)].) Even if one who discharges a firearm at another
person “necessarily has ‘maneuvered himself into such a location and equipped
himself with sufficient means that he appears to be able to strike immediately at
his intended victim’ ” (Edward G., supra, 124 Cal.App.4th at p. 969, italics
added), it does not necessarily follow that a perpetrator who is in a position to
shoot “at” another person can strike his target if, for example, the target is too far
away. As the Court of Appeal in this case reasoned, the word “at” in the phrase
“discharges a firearm from a motor vehicle at another person” (§ 12034, subd. (c)),
9
does not necessarily connote immediate presence or a location necessarily within
striking distance of an intended target. We disapprove Edward G. to the extent it
is inconsistent with this opinion. (In re Edward G., supra, 124 Cal.App.4th 962.)
Accordingly, we conclude that the crime of assault with a firearm (§ 245,
subd. (a)(2)) is not a lesser included offense of shooting at another person from a
vehicle (§ 12034, subd. (c)). Thus, the trial court did not err in failing to instruct
the jury sua sponte on the offense of assault with a firearm.
III. DISPOSITION
For the reasons stated above, we affirm the judgment of the Court of
Appeal.
CHIN, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

10



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Licas
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 134 Cal.App.4th 566
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S140032
Date Filed: June 18, 2007
__________________________________________________________________________________

Court:

Superior
County: Orange
Judge: Kazuharu Makino

__________________________________________________________________________________

Attorneys for Appellant:

Christopher Blake, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Mary Jo Graves,
Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Kelley
A. Johnson, Deputy Attorney General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher Blake
4455 Lamont Street, #B
San Diego, CA 92169
(858) 274-1772

Kelley A. Johnson
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3155


Opinion Information
Date:Docket Number:
Mon, 06/18/2007S140032

Parties
1Licas, Norman Paul (Defendant and Appellant)
Calipatria State Prison
P. O. box 5001
Calipatria, CA 92233

Represented by Christopher Blake
Attorney at Law
P.O. Box 90218
San Diego, CA

2The People (Plaintiff and Respondent)
Represented by Kelley Ann Johnson
Office of the Attorney General
111 West "A" Street, Suite 1100
San Diego, CA

3The People (Plaintiff and Respondent)
Represented by Gary W. Schons
Office of the Attorney General
111 West "A" Street, Suite 1100
San Diego, CA


Disposition
Jun 18 2007Opinion: Affirmed

Dockets
Dec 30 2005Petition for review filed
  Norman Licas, defendant and appellant Christopher Blake, c/a appointed counsel c/a rec req
Jan 9 2006Received Court of Appeal record
  one folder & loose briefs
Feb 21 2006Time extended to grant or deny review
  to 3-30-06
Mar 1 2006Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Mar 24 2006Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Christopher Blake is hereby appointed to represent appellant on appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Apr 24 2006Request for extension of time filed
  to May 24, 2006 to file appellant's opening brief on the merits.
Apr 26 2006Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 24, 2006.
May 24 2006Opening brief on the merits filed
  Appellant's (Licas)
Jun 14 2006Compensation awarded counsel
  Atty Blake
Jun 20 2006Request for extension of time filed
  to July 24, 2006, to file Respondent's Answer Brief on the Merits.
Jun 22 2006Extension of time granted
  On appilcation of respondent and good cause appearing, it is ordered that the time to serve and file Respondent's Answer Brief on the Merits is extended to and includng July 24, 2006.
Jul 17 2006Request for extension of time filed
  to August 23, 2006, to file Respondent's Answer Brief on the Merits.
Jul 25 2006Extension 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 August 23, 2006.
Aug 15 2006Request for extension of time filed
  to September 22, 2006, to file Respondent's Answer Brief on the Merits. [ 3rd request filed in San San Diego ]
Aug 21 2006Extension 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 September 22, 2006.
Sep 22 2006Answer brief on the merits filed
  The People, Respondent by Kelley Johnson, counsel.
Sep 22 2006Request for judicial notice filed (granted case)
  The People, Respondent by Kelley Johnson, counsel
Sep 22 2006Received:
  Attachment pursuant to rule 977 (c) of the California Rules of Court. The People, Respondent by Kelley Johnson, counsel
Oct 10 2006Received:
  petitioner's opposition to respondent's request to cite to an unpublished opinion
Oct 10 2006Reply brief filed (case fully briefed)
  appellant's
Apr 3 2007Case ordered on calendar
  to be argued Wednesday, May 2, 2007, at 9:00 a.m., in San Francisco
Apr 23 2007Order filed
  The Respondent's request for judicial notice filed on September 22, 2006, taking judicial notice of a senate committee analysis and two assembly committee analyses of section 12034, subdivision (c) is granted. The request to take judicial notice of the unpublished Ohio opinion is denied.
May 2 2007Cause argued and submitted
 
Jun 15 2007Notice of forthcoming opinion posted
 
Jun 18 2007Opinion filed: Judgment affirmed in full
  of the Court of Appeal. Opinion by Chin, J. -- Joined by George, C. J., Kennard, Baxter, Werdegar, Moreno and Corrigan, J.
Jul 19 2007Remittitur issued (criminal case)
 
Jul 25 2007Received:
  Receipt for remittitur from Fourth District, Division Three, signed for by Denise Massey, Deputy Clerk
Aug 29 2007Compensation awarded counsel
  Atty Blake

Briefs
May 24 2006Opening brief on the merits filed
 
Sep 22 2006Answer brief on the merits filed
 
Oct 10 2006Reply 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