Brief Bank # B-744
NOTE: The text of the footnotes appear at the end of the document.
II. THE SECTION 246 CONVICTION MUST BE REVERSED BECAUSE THE
EVIDENCE PRESENTED DOES NOT SUPPORT A CONVICTION AND
BECAUSE THE TRIAL JUDGE ERRONEOUSLY DEFINED A CRITICAL
ELEMENT OF THE OFFENSE.
A. The Evidence Presented, Including the Prosecution’s Theory of the Case, Does
Not Support a Section 246 Conviction
Count Six of the Indictment charged Mr. Doe with violation of section 246 (Shooting At An Inhabited or Occupied Building). Section 246 in relevant part provides:
Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house . . . is guilty of a felony . . . .
(§ 246, subd. (a).)
The language of the statute has been interpreted as requiring that the perpetrator shoot at a dwelling from outside the dwelling. (See People v. Stepney (1981) 120 Cal.App.3d 1016 and discussion hereafter.) Since the statute requires that the shooting take place from outside the targeted dwelling, Mr. Doe should not have been convicted on the section 246 count. The conviction should not stand because all of the evidence presented during trial, including the prosecution’s theory of the case, was to the effect that if Mr. Doe fired the bullets that were found inside the house at 911 Fitzuren, he did so while he was at least partially inside the house and while the gun was entirely inside.
The evidence presented to the jury created two possible pictures of Mr. Doe at the time the shots were fired in the victim’s home. The prosecution’s theory was that Mr. Doe (as the outer man) violated section 246 when he forced his hands and his .22 caliber pistol through a panel in the front door of the Fitzuren residence, and then cocked and fired the gun inside the house. (RT 443.) A different picture was presented when Mr. Doe testified at trial that he was completely inside the house when the shots were fired. (RT 344. 347, 353.) The jury’s verdicts show that it accepted the prosecution’s version of events. [Footnote 1]
Physical evidence also corroborated that Mr. Doe was at least partially inside the residence when his gun discharged. Three .22 caliber shells from his gun were found inside the house, not far from the front door. Finding these shells inside the house meant, at minimum, that Mr. Doe’s hands were in the house as of the time the shots were fired. [Footnote 2]
Since the evidence established at least a partial entry into the residence by Mr. Doe — and a complete entry by the pistol — at the time the weapon was discharged, section 246’s requirement that the defendant discharge a firearm “at” an inhabited house could not have been satisfied. In People v. Stepney (1981) 120 Cal.App.3d 1016, the “at an inhabited dwelling house” language of section 246 was held to apply only to a shooting at an inhabited dwelling from outside the building. ad. at p. 1018.) The court rejected the contention that section 246 broadly prohibited shooting at buildings from inside or out. (Id., at p. 1018.) The court reasoned that the “at” language of section 246 was ambiguous and that, therefore, the ambiguity regarding the scope of the statute had to be construed in favor of the accused. [Footnote 3] (Id., at p. 1019.) Consequently, Stepney held that the accused had to be on the outside of the building in order to shoot “at” it within the meaning of section 246.
Having one’s hands and gun inside the house when the shots occur is not shooting from outside the dwelling, nor “at” it. That conclusion is supported not only by the language of the statute, as Stepney found, but also by case law that has consistently held that a perpetrator has entered a dwelling even if only his or her hand invades the structure. (See People v. Massey (1961) 196 Cal.App.2d 230, 236; People v. Peltinger (1928) 94 Cal.App. 297, 299 [cases holding that a hand entering a building is deemed sufficient for the entry element of a burglary charge].) While those cases were not specifically considering section 246, logic and consistency would require their principles to be applied here. As the California Supreme Court has directed, a statute should not be construed in isolation but rather should be read with reference to the entire scheme of law of which it is a part so that the whole may be harmonized. (People v. Thomas (1992) 4 Cal.4th 206, 210.)
Since no substantial evidence was presented at trial that Mr. Doe fired shots from the outside of the Fitzuren residence, his conviction on an offense that requires that the shots be fired from the outside cannot stand. Even the prosecution’s theory of the case could not support a conviction since it conceded that the shots were discharged from within the house. (See, e.g., Jackson v. Virginia (1979) 443 U.S. 307; Mikes v. Borg (9th Cir. 1991) 947 F.2d 353; U.S. Const., 5th, 6th, & 14th Amends.)
B. The Trial Judge Erroneously Instructed the Jury That Section 246 Could Be
Violated If Mr. Doe Had Weapon In the House While the Rest of His Body
Even if this Court were to determine that substantial evidence supported Mr. Doe’s conviction under section 246, that conviction nevertheless must be reversed because of instructional error. During deliberations, the jury sent a note to the trial court, asking “When the person has the weapon in the house but his body is outside the house is this considered in or at an inhabited dwelling house?” (CT 464, original emphasis.) The trial court responded, “the answer is ‘at’.” (CT 465, original emphasis.) The jury promptly returned its verdicts in the case. (CT 265.)
The trial court’s response to the jury’s question was plain error. Section 246 excludes from its scope those perpetrators who fire a weapon while inside the structure, as discussed above. (See People v. Stepney, supra, 120 Cal.App.3d 1016.)
Equally plain, the error requires reversal of the section 246 conviction. Courts recognize that the trial judge’s duty to adequately address jurors’ inquiries becomes particularly acute when the jury asks for specific guidance on a particular charge. (See, e.g., Trejo v. Maciel (1966) 239 Cal.App.2d 487, 498; People v. Miler (1981) 120 Cal.App.3d 233, 236.) For, when it seeks clarification, the jury is telling the trial judge what it believes are the critical issues to resolving the charge. People v. Thompkins (1987) 195 Cal.App.3d 244, 250.)
Moreover, the conclusion that the trial court’s erroneous response to the jury’s inside/outside question was dispositive for the jury is confirmed by at least three additional considerations. First, as discussed above, the prosecution’s sole theory of guilt as to Count Six was that Mr. Doe’s hands were inside the residence when the shots were fired. Second, the jury had asked other questions that showed it was focused on the inside/outside issue in resolving Count Six. [Footnote 4] Third, once the judge answered the “inside/outside” question, the jury promptly returned its verdict. These facts make it virtually certain that the trial court’s error in answering the jury’s question affected the jury’s verdict. The facts of this case are more than sufficient to meet the test for prejudice established by People v. Watson (1956) 46 Cal.2d 818, 836.) They are perforce sufficient to satisfy the Chapman test. (U.S. Const., 5th, 6th, & 14th Amends.; see, e.g., Sullivan v. Louisiana, supra, 124 L.Ed.2d 182; Rose v. Clark, supra, 478 U.S. 570; Suniga v. Bunnell (9th Cir. 1993) 998 F. 2d 664.)
Footnote 1: This conclusion is further supported by the questions asked by the jury during deliberations, as discussed below.
Footnote 2: See footnote 8 and accompanying text.
Footnote 3: As Stepney held, the construction of a statute which is more favorable to the accused will ordinarily be adopted when there is an ambiguous term in a penal statute. (See, e.g., People v. Quiroga (1993) 16 Cal.App. 4th 961; People v. Bradley (1983) 146 Cal.App.3d 721.)
Footnote 4: On the previous day, the jury had written to the judge, saying “We need instruction of Item #6. Does it make any difference if the weapon and/or the shooter are inside or outside the dwelling place? (CT 461.) The judge replied by “suggest[ing]” the jury reread the relevant instructions and inviting the jury to “send me a further note” if more information or help was needed. (CT 467.)
Later, at the same time it asked the question discussed in the text, the jury also asked, “Does 100% of the firearm have to inside the house in order to constitute ‘discharging a firearm at an inhabited house?” (CT 464, original emphasis.) The trial judge found this question “somewhat confusing” (though the judge did not state why) and asked the jury to “clarify your question by sending me an additional note.” (CT 465.) The judge did answer the inside/outside question asked simultaneously with this one, and having received an answer to its that question, the jury sent no additional note.