F 9.03 –

F 9.03 n1 Shooting At Inhabited Dwelling: Lesser Offense Of Violating City Ordinance (PC 246).

Many cities have local ordinances against discharging a firearm within the city limits. Therefore, if the accusatory pleading charges the offense of shooting at an inhabited dwelling in such a way as to encompass all of the elements of the local ordinance (i.e., that the gun was discharged within the city limits) then there is a sua sponte obligation to instruct upon the local ordinance as a lesser included offense. (See People v. Moore (83) 143 CA3d 1059, 1067 [192 CR 374].)

Moreover, even if the local ordinance is not a lesser included offense it may be a lesser related offense on which instruction may be requested. (See FORECITE LRO.)

F 9.03 n2 Shooting At Occupied Motor Vehicle (PC 246).

PC 246 proscribes discharging a firearm at, inter alia, an occupied motor vehicle. In People v. Buttles (90) 223 CA3d 1631, 1636-38 [273 CR 397], the court considered whether the trailer portion of a tractor trailer rig is a motor vehicle within the definition of PC 246. The defendant argued that VC 415 defines a motor vehicle as a vehicle which is self-propelled and that the trailer portion of a tractor trailer rig is not included within this definition. The Court of Appeal rejected this argument concluding that when a trailer and tractor are joined for the purpose of being moved simultaneously over the highway by self-propulsion of the tractor portion, the tractor/trailer rig comes within the meaning of a “motor vehicle” as used in PC 246.

F 9.03 n3 Shooting At Inhabited Dwelling: Auxiliary Structures (PC 246).

The meaning of “inhabited” may be extended to auxiliary structures or areas. (See, People v. Hines (89) 210 CA3d 945, 949-50 [259 CR 128] [guest house 200 yards from primary residence is “inhabited” for purpose of burglary statute]; and People v. Wilson (89) 209 CA3d 451, 453 [256 CR 808] [hotel lobby is “inhabited dwelling house” for purpose of robbery statute].)

F 9.03 n4 Shooting At Inhabited Dwelling: Multiple Rooms (PC 246).

There may be “more than one dwelling under the same roof.” (People v. Fleetwood (85) 171 CA3d 982, 987 [217 CR 612] [separate rooms within a hotel] and People v. O’Keefe (90) 222 CA3d 517, 521 [271 CR 769] [separate rooms in a dormitory]; see also, FORECITE F 9.42 n1 and FORECITE F 14.52a.)

F 9.03 n5 Shooting At Inhabited Dwelling: Required Intent (PC 246).

While PC 246 does not require specific intent (see People v. Jischke (96) 51 CA4th 552, 556 [59 CR2d 269]), in the absence of such specific intent, it must be proven that the defendant acted with conscious indifference or reckless disregard. (See FORECITE F 9.03d.)

F 9.03 n6 Shooting At Inhabited Dwelling: Liability For Second Degree Murder (PC 246).

In People v. Wesley (70) 10 CA3d 902, 905-10 [89 CR 377], the court, looking to concepts enunciated in People v. Ireland (69) 70 C2d 522, 538-39 [75 CR 188], concluded that the felony of discharging a firearm at an inhabited dwelling (PC 246) could not support a finding of second degree murder. In People v. Hansen (94) 9 C4th 300 [36 CR2d 609], the court disagreed with Wesley and held that Ireland does not preclude second degree murder liability based upon discharging a firearm at an inhabited dwelling. In so doing, the court declined to extend the Ireland doctrine beyond the context of assault even under circumstances in which the underlying felony plausibly could be characterized as “an integral part of” and “included in fact within, the resulting homicide.” [9 C4th at 311-16.]

F 9.03 n7 Shooting At An Occupied Vehicle: ADW Is Not An LIO (PC 246).

Because one can violate PC 246 by discharging a firearm at a vehicle in a location beyond the reasonable range or striking distance of a human target, PC 246 may be violated without having the “present ability” to inflict an injury on the person of another required for assault with a deadly weapon per PC 245(a)(1). Hence, the elements of these two crimes are not congruent and ADW is not necessarily a lesser included offense of shooting at an occupied motor vehicle. (In re Daniel R. (93) 20 CA4th 239, 247 [24 CR2d 414].)

F 9.03 n8 Shooting At Inhabited Dwelling: Shooting Within A Building.

Firing a firearm within a dwelling does not violate PC 246 unless fired from one apartment into an adjoining one through a common wall or floor or ceiling. (People v. Jischke (96) 51 CA4th 552 [59 CR2d 269]; see also People v. Stepney (81) 120 CA3d 1016, 1018-21; People v. Roach UNPUBLISHED (A069056) [PC 246 conviction reversed where defendant’s hand and firearm were inside house when he fired]. [See Opinion Bank # O-235 and Brief Bank # B-744 for a copy of the Roach opinion and briefing].)

F 9.03 n9 Inhabited Dwelling Defined: Occupant Must Be Alive.

A dwelling is not inhabited for purposes of PC 459 (and presumably PC 246) if the dwelling has been left unoccupied by the occupant’s death. “[A] dead body is not using a house for a ‘dwelling’….” (People v. Ramos (97) 52 CA4th 300 [60 CR2d 523].)

F 9.03 n10 Appellate Issue Alert: Pre-1997 Version.

The pre-1997 version of CJ 9.03 omitted the issue of lawfulness. (See CALJIC History CJ 9.03.)

F 9.03 n11 Shooting At Inhabited Dwelling: Imperfect Self-Defense Not Applicable (PC 246).

See People v. Watle (2002) 100 CA4th 866 [124 CR2d 258] [imperfect self-defense not a defense to discharging firearm at an inhabited dwelling].

F 9.03 n12 Shooting At Inhabited Dwelling (PC 246.3): Applicability To Shots Fired In Close Proximity To An Inhabited Dwelling.

People v. Overman (2005) 126 CA4th 1344 held that PC 246 is not limited to the act of shooting directly “at” an inhabited or occupied target. Rather the act of shooting “at” a prescribed target is also committed when the defendant shoots “in such close proximity to the target that he shows a conscious indifference to the probable consequence that one or more bullets will strike the target or persons in or around it.

NOTE: to the extent that this conscious indifference requires a mental state akin to knowledge, it should be subject to negation by intoxication or mental impairment even though PC 246 is only a general intent crime. (See FORECITE F 4.21 n4.)

F 9.03a

Shooting At An Inhabited Dwelling:

Temporarily Absent Occupant Must Intend To Continue Living In The Dwelling

(PC 246)

*Modify last ¶ of CJ 9.03 defining “inhabited” to provide as follows [added language is capitalized; deleted language is between <<>>]:

<<The word “inhabited” means>> AN INHABITED DWELLING HOUSE IS A STRUCTURE WHICH IS currently being used for dwelling purposes whether occupied or not. IT IS INHABITED ALTHOUGH THE OCCUPANTS ARE TEMPORARILY ABSENT, SO LONG AS THE OCCUPANTS INTEND TO CONTINUE LIVING IN THE DWELLING. IT IS NOT INHABITED IF THE CURRENT OCCUPANTS ARE ABSENT AND DO NOT INTEND TO CONTINUE LIVING THERE. [IF THE CURRENT OCCUPANTS DO NOT INTEND TO CONTINUE LIVING THERE, THE DWELLING IS UNINHABITED EVEN IF THE OCCUPANTS HAVE LEFT PERSONAL PROPERTY ON THE PREMISES.]

Points and Authorities

While there is no requirement that the dwelling be occupied (i.e., that the occupants actually be present), it is required that the prosecution prove that the current occupants of the dwelling intend to continue living there in order for the dwelling to remain “inhabited” during the occupants’ temporary absence. (See People v. Jones (88) 199 CA3d 543, 546-49 [245 CR 85], discussing PC 451.)

For example, in People v. Cardona (83) 142 CA3d 481, 483-484 [191 CR 109], the court held that the house was not inhabited after the tenants moved out intending never to return, even though the term of their tenancy had not yet expired and they had not completed moving all their belongings out of the house. “Where … the residents have moved out without the intent to return, the house becomes uninhabited, i.e., it is no longer being used for dwelling purposes.” (Id. at 482-84; see also People v. Guthrie (83) 144 CA3d 832, 838 [193 CR 54].)

Accordingly, CJ 9.03 should be modified as set forth above to inform the jurors of the requirement that the occupants must intend to continue living in the dwelling.

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

NOTES

[See also, FORECITE F 9.42 n1 and FORECITE F 14.52a.]

F 9.03b

Definition of Inhabited Dwelling

(PC 246)

*Add to CJ 9.03:

In deciding whether a dwelling house is inhabited it is the present use rather than past or future intended use which is determinative. It is the intent and not the length of the absence that controls. ¶ A dwelling house may be currently used for dwelling purposes even though the occupants are temporarily absent so long as any of such occupants intend, at the time of the alleged burglary, to reoccupy it for dwelling purposes within a short period of time. ¶ Just because the purpose of the structure is to serve as a dwelling does not in itself make the dwelling inhabited; it is necessary that someone be currently using this structure as a dwelling at the time of the break-in.”

Points and Authorities

People v. Hernandez (92) 9 CA4th 438, 441-42 [11 CR2d 739] held that a burglarized apartment was occupied because the occupants — although they had yet to sleep there — had left their belongings in the apartment and intended to occupy it. Hernandez concluded that the above instruction “adequately expressed the concepts of occupancy and habitation.” (See also People v. Fond (99) 71 CA4th 127 [83 CR2d 660] [definition of inhabited dwelling for purposes of burglary includes room in locked psychiatric hospital].)

F 9.03c

Negation Of Knowledge Element

(PC 246)

*Add to CJ 9.03:

[See FORECITE F 1.20b.]

F 9.03d

Shooting At Inhabited Dwelling:

Requirement Of Reckless Disregard Of Probable Consequences

*Add the following element to CJ 9.03:

The shot[s] [was] [were] fired with:

a. the intent to hit the building, or

b. if there was no intent to hit the building, there was a reasonable likelihood that the building would be hit and the defendant acted with conscious indifference to and reckless disregard for that likelihood.

Points and Authorities

In People v. Chavira (70) 3 CA3d 988, 990 [83 CR 851], the defendant was convicted of maliciously discharging a firearm at an inhabited dwelling in violation of PC 246. On appeal, he argued his conviction should be reversed because he had not intended for his shots to strike the dwelling in question, but had, instead, intended for them to strike people outside the dwelling. (Id. at 992.) The court rejected this argument holding as follows:

The jury was instructed that, to convict under section 246, the shooting must have been with the intent to hit the building. [Footnote.] An act done with reckless disregard of probable consequences is an act done with “intent” to cause such result within the meaning of the words used in the instruction.

Defendant and his associates[] engaged in a fusillade [footnote] of shots directed primarily at persons standing close to a dwelling. The jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient “intent” to satisfy the statutory requirement. (Id., at 993, emphases added.)

Subsequent case law has been consistent with Chavira, as several cases have echoed the Chavira court’s pronouncement that the crime described in section PC 246 is a general intent crime. (People v. Hoover (74) 12 C3d 875, 882 n5 [117 CR 672]; People v. Froom (80) 108 CA3d 820, 826 [166 CR 786]; People v. Williams (80) 102 CA3d 1018, 1028-1029 [162 CR 748].) Similarly, several cases have echoed Chavira‘s pronouncement that a defendant may be convicted of violating Penal Code section 246 absent evidence of specific intent, provided he/she willfully discharged his/her firearm with conscious indifference to or reckless disregard for the fact the resultant gunshots would likely strike an occupied dwelling. (People v. Cruz (95) 38 CA4th 427, 432-433 [45 CR2d 148]; People v.White (92) 4 CA4th 1299, 1303-1304 [6 CR2d 259]; People v. Williams, supra, 102 CA3d at 1029.

Accordingly, CJ 9.03 should be modified to require the jury to find either the intent element or the reckless disregard/conscious indifference element. [Briefing is available on the question of whether shooting at an inhabited dwelling requires specific intent. Ask for Brief Bank # B-580.]

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

[Briefing is available on the question of whether shooting at an inhabited dwelling requires specific intent. Ask for Brief Bank # B-580.]

F 9.03e

Shooting At An Inhabited Dwelling: Definition Of “Maliciously”

(PC 246)

*Add to CJ 9.03:

An act is malicious if it is committed with intent to commit an unlawful act or cause harm without lawful justification or excuse.

or CJ 1.22

Points and Authorities

PC 246 requires that the discharge of the firearm be “willful and malicious.” Use of the word “maliciously” in a penal statute does not make the crime one requiring a specific intent. (See People v. Bohmer (75) 486 CA3d 185, 191 [120 CR 136].) However, “malice” in these circumstances does require, “…intent to commit an unlawful act or cause harm without lawful justification or excuse.” (Webster’s Ninth New Collegiate Dictionary (1984), p. 720.) Accordingly, per the CALJIC Use Note to CJ 9.03 the definition of maliciously contained in CJ 1.22 applies to PC 246 and, either that definition or the definition set forth above should be given upon request.

STRATEGY NOTE: In the event the request is denied based on the jurors’ common understanding of the term “malicious,” defense counsel should have the right during argument to read the the above definition of malice to the jury and inform them that such definition applies to the charge in this case. (See FORECITE F 1.00n.)