Shooting at Building/Vehicle
Category > Shooting at Building/Vehicle
Chun case holding discharging a firearm at a vehicle cannot be used to support felony-murder should be applied retroactively, and the petition filed 10 months after the decision was not untimely. In 1995, defendant was convicted of second degree murder after he shot at an occupied vehicle, killing an occupant. In 2009, the California Supreme Court decided People v. Chun (2009) 45 Cal.4th 1172, announcing that the crime of shooting at an occupied vehicle now merges with the homicide such that it can no longer be used as a predicate for application of the felony-murder rule. Defendant’s habeas corpus petition filed 10 months after Chun was decided was timely. Moreover, Chun should be applied retroactively. However, any error in instructing on the felony-murder rule was harmless where the record showed the jury rested its verdict on malice rather than felony murder.id: 22453
Evidence did not support the conviction for discharging a firearm at an occupied vehicle where defendant stood outside the truck but fired the gun which was inside the vehicle.The evidence was insufficient to support defendant’s conviction for discharging a firearm at an occupied vehicle pursuant to Penal Code section 246 because although he was standing outside the truck, the gun was inside the truck at the time he fired at the two passengers.id: 22035
Negligent discharge of a firearm is a necessarily included offense of discharge of a firearm at an inhabited dwelling. Defendant was convicted of three counts of grossly negligent discharge of a firearm under Penal Code section 246.3, subd.(a) and three counts of discharge of a firearm at an inhabited dwelling under section 246 based on the same acts. However, the convictions for the former were reversed because that offense is necessarily included within the latter.id: 20842
A defendant who is already inside the house (in the garage) cannot be convicted of shooting at an inhabited dwelling under section 246. A defendant cannot be convicted of shooting at an inhabited dwelling within the meaning of Penal Code section 246 if he or she is inside the attached garage of the dwelling and fires gunshots into the house. id: 20669
The trial court erred by refusing to instruct that negligent discharge of a weapon was a lesser included offense of shooting at an occupied building.Defendant was convicted of shooting at an occupied building pursuant to Penal Code section 246. However, the trial court erroneously refused to instruct on the lesser included offense of grossly negligent discharge of a firearm under section 246.3. Expiration of the limitations period on the lesser offense was an insufficient basis for refusing the instructions because defendant was willing to waive the limitations period defense. Moreover, substantial evidence showed the lesser, but not the greater offense was committed.id: 18372
Updated 2/1/2024Defendant who stepped out of his vehicle to fire shots was properly convicted of discharging a firearm “from” a vehicle.Defendants were driving, stopped, exited the vehicle and fired shots at the victim, reentered the vehicle and drove away. The evidence was sufficient to sustain the conviction for discharging a firearm “from” a vehicle pursuant to Penal Code section 26100(b) and (c).id: 27910
Defendant was properly convicted of aiding and abetting the shooting of an inhabited dwelling where he encouraged the perpetrator to shoot the fleeing victims and the perpetrator decided to fire shots at the house. The evidence supported defendant’s conviction for shooting at an inhabited dwelling where he handed White the gun and said “go get” the victims, and White thereafter fired shots at the nearby house instead. An aider and abettor of a shooting under Penal Code section 246 need not know of, or share the perpetrator’s specific intent to shoot at an inhabited dwelling, even when the perpetrator had such an intent. id: 23829
The trial court did not err in failing to instruct on the shooting from a motor vehicle charge.Defendant argued the trial court erred in refusing to instruct on imperfect self-defense as a defense to the charge of shooting from a vehicle pursuant to Penal Code section 26100. However, the defense does not apply to the malicious discharge of a firearm from a motor vehicle. Because the jury was not asked to find defendant harbored "malice aforethought" in his shooting from a vehicle, the instruction would have been inappropriate.id: 23489
The trial court had no sua sponte duty to instruct on imperfect self defense as a defense to shooting from a vehicle.The trial court had no duty to instruct sua sponte that an honest but unreasonable belief in the need for self-defense is a defense to the crime of shooting from a vehicle. id: 23124
A defendant may be convicted of firing a gun at an occupied motor vehicle when the gun is actually inside the car when fired.Penal Code section 246 makes it unlawful for any person to maliciously and willfully discharge a firearm at an occupied motor vehicle. The provision applies to a person standing outside of an occupied vehicle and shooting into it, even if the gun has crossed the plane and is actually inside when it is fired.id: 22627
The trial court did not err in failing to instruct that for purposes of aiding and abetting the shooting from a vehicle, the prosecution must prove the shooter intended to shoot at a particular person and defendant's shared intent.Defendant was convicted as an aider and abettor of discharging a firearm from a motor vehicle at another person in violation of Penal Code section 12034, subd.(c), He argued that the trial court erred by failing to instruct the prosecution had to prove he knew the shooter intended to shoot at another person (rather than firing shots into the air) and that he shared that intent. However, the fact that the provision requires that the perpetrator shoot "at" a particular target does not transform the crime into a specific intent offense. The trial court did not misinstruct the jury by omitting the mental state element with respect to section 12034, subd.(c). id: 21408
A person can be convicted of shooting at an occupied vehicle if her body was outside the car but her hand was inside when she pulled the trigger. Defendant argued that the trial court erred by instructing the jury that it could convict her of shooting at an occupied vehicle if it believed that her hand or the gun were inside the vehicle when she shot into it. However, the court properly instructed that a person standing outside a vehicle who, while holding a gun, reaches into the vehicle through an open window or door and fires the gun, may be convicted of shooting “at” an occupied vehicle. id: 21737
Standard CALJIC instruction on "malice" was appropriate for the charge of discharging a firearm at an inhabited dwelling.Defendant was convicted of discharging a firearm at an inhabited dwelling under Penal Code section 246. He argued the court erred in failing to properly define "malice" as that term is used in section 246. According to defendant, the type of malice to which section 246 refers requires a demonstration that the act was without lawful justification, excuse or mitigating circumstance. However, the court did not err in providing the standard CALJIC instruction on malice.id: 16946
The prosecution does not have to prove the absence of permission in a case involving the discharge of a firearm at an unoccupied vehicle.Defendant argued the trial court erred by refusing to instruct the jury that the prosecution must prove the absence of permission of the owner as an element of the charged crime of discharging a firearm at an unoccupied motor vehicle. However, the absence of owner permission is not an element of the crime for which the prosecution has the burden of proof.id: 18126
Discharge of a weapon at an unoccupied motor vehicle provision does not allow one co-owner to shoot up a car without the consent of the other owners.Defendant was convicted of discharging a firearm at an unoccupied motor vehicle in violation of Penal Code section 247, subd.(b). He argued that he could not be convicted of that offense because he was one of the two registered owners of the vehicle he shot. However, the owner consent provision of the statute requires the consent of all owners, not just the shooter, where the shooter is one of several co-owners.id: 19578
The trial court did not err in failing to instruct on section 246.3 as a lesser included offense of section 246 where the evidence showed defendant committed both offenses or neither. Grossly negligent discharge of a gun under Penal Code section 246.3 is a lesser included offense of firing a gun at an inhabited dwelling under section 246, but the failure to instruct on the former was not error where the evidence showed he was guilty of both crimes or neither.id: 19882
Section 246 does not require an intent to shoot directly at or strike an occupied building.Defendant was convicted of shooting at an occupied building under Penal Code section 246. He argued the trial court erred by failing to instruct that the offense requires an intent to shoot directly at the building. However, section 246 is not limited to shooting at a proscribed target and does not require an intent to strike the target.id: 18371
Negligent discharge of a firearm is not necessarily included in firing at an inhabited dwelling.It is possible to shoot at an inhabited dwelling within the
meaning of Penal Code section 246 without negligently discharging a firearm within the meaning of section 246.3. Therefore, the latter is not a lesser included offense of the former.id: 19838
Defendant was properly convicted of shooting at an inhabited dwelling where he fired the gun inside his own apartment.Defendant fired a shot into the floor of his apartment and, hence, into the apartment below, striking an occupant of the lower dwelling. He was convicted of, among other things, discharging a firearm at an inhabited dwelling in violation of Penal code section 246. He argued that shooting inside of a building rather than at a building does not support a conviction of section 246. However, defendant was properly convicted under section 246 where he fired the gun inside his own apartment.id: 10499
Defendant necessarily intended to strike the building with a bullet where the intended victim was inside the building behind a glass door.Defendant was convicted of discharging a firearm at an occupied building pursuant to Penal Code section 246. He argued the intent required by section 246 was the intent to strike the building and that such intent was not established. However, defendant intended to shoot an individual inside the building behind a glass door. The only way to shoot the victim was to strike the building by firing a shot through the glass door. Defendant necessarily intended to strike the building.id: 9692
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245