Stanford Law School - Robert Crown Law Library

(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