SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 965 NOTES
TABLE OF CONTENTS
F 965 Note 1 Shooting At Inhabited House Or Occupied Motor Vehicle—CALCRIM Cross-References And Research Notes
F 965 Note 2 Shooting At Occupied Motor Vehicle (PC 246)
F 965 Note 3 Shooting At Inhabited Dwelling: Auxiliary Structures (PC 246)
F 965 Note 4 Shooting At Inhabited Dwelling: Multiple Rooms (PC 246)
F 965 Note 5 Shooting At Inhabited Dwelling: Required Intent (PC 246)
F 965 Note 6 Shooting At Inhabited Dwelling: Liability For Second Degree Murder (PC 246)
F 965 Note 7 Shooting At An Occupied Vehicle: ADW Is Not An LIO (PC 246)
F 965 Note 8 Shooting At Inhabited Dwelling: Shooting Within A Building
F 965 Note 9 Inhabited Dwelling Defined: Occupant Must Be Alive
F 965 Note 10 Shooting At Inhabited Dwelling: Imperfect Self-Defense Not Applicable (PC 246)
F 965 Note 11 Shooting At Inhabited Dwelling (PC 246.3): Applicability To Shots Fired In Close Proximity To An Inhabited Dwelling
F 965 Note 12 Shooting At Inhabited Dwelling: Lesser Offense Of Violating City Ordinance (PC 246)
Return to Series 900 Table of Contents.
F 965 Note 1 Shooting At Inhabited House Or Occupied Motor Vehicle—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 966 [Shooting At Uninhabited House Or Unoccupied Motor Vehicle]
CALCRIM 967 [Shooting At Unoccupied Aircraft]
CALCRIM 968 [Shooting From Motor Vehicle]
CALCRIM 969 [Permitting Someone To Shoot From Vehicle]
CALCRIM 970 [Shooting Firearm In Grossly Negligent Manner]
Research Notes:
See CLARAWEB Forum, Assaultive And Battery Crimes—Series 800-900.
F 965 Note 2 Shooting At Occupied Motor Vehicle (PC 246)
PC 246 proscribes discharging a firearm at, inter alia, an occupied motor vehicle. In People v. Buttles (1990) 223 CA3d 1631, 1636-38, 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.
CALJIC NOTE: See FORECITE F 9.03 n2.
F 965 Note 3 Shooting At Inhabited Dwelling: Auxiliary Structures (PC 246)
The meaning of “inhabited” may be extended to auxiliary structures or areas. (See, People v. Hines (1989) 210 CA3d 945, 949-50 [guest house 200 yards from primary residence is “inhabited” for purpose of burglary statute]; and People v. Wilson (1989) 209 CA3d 451, 453 [hotel lobby is “inhabited dwelling house” for purpose of robbery statute].)
CALJIC NOTE: See FORECITE F 9.03 n3.
F 965 Note 4 Shooting At Inhabited Dwelling: Multiple Rooms (PC 246)
There may be “more than one dwelling under the same roof.” (People v. Fleetwood (1985) 171 CA3d 982, 987 [separate rooms within a hotel] and People v. O’Keefe (1990) 222 CA3d 517, 521 [separate rooms in a dormitory]; see also, FORECITE F 9.42 n1 and FORECITE F 14.52a.)
CALJIC NOTE: See FORECITE F 9.03 n4.
F 965 Note 5 Shooting At Inhabited Dwelling: Required Intent (PC 246)
While PC 246 does not require specific intent (see People v. Jischke (1996) 51 CA4th 552, 556), in the absence of such specific intent, it must be proven that the defendant acted with conscious indifference or reckless disregard. (See FORECITE F 965.5 Inst 4.)
CALJIC NOTE: See FORECITE F 9.03 n5.
F 965 Note 6 Shooting At Inhabited Dwelling: Liability For Second Degree Murder (PC 246)
In People v. Wesley (1970) 10 CA3d 902, 905-10, the court, looking to concepts enunciated in People v. Ireland (1969) 70 C2d 522, 538-39, 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 (1994) 9 C4th 300, 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.]
CALJIC NOTE: See FORECITE F 9.03 n6.
F 965 Note 7 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. (1993) 20 CA4th 239, 247.)
CALJIC NOTE: See FORECITE F 9.03 n7.
F 965 Note 8 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 (1996) 51 CA4th 552; see also People v. Stepney (1981) 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.]
CALJIC NOTE: See FORECITE F 9.03 n8.
F 965 Note 9 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 (1997) 52 CA4th 300.)
CALJIC NOTE: See FORECITE F 9.03 n9.
F 965 Note 10 Shooting At Inhabited Dwelling: Imperfect Self-Defense Not Applicable (PC 246)
See People v. Watie (2002) 100 CA4th 866 [imperfect self-defense not a defense to discharging firearm at an inhabited dwelling].
CALJIC NOTE: See FORECITE F 9.03 n11.
F 965 Note 11 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.)
CALJIC NOTE: See FORECITE F 9.03 n12.
F 965 Note 12 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 (1983) 143 CA3d 1059, 1067.)
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.)
CALJIC NOTE: See FORECITE F 9.03 n1.