Filed 4/22/14 P. v. Leonity CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----



THE PEOPLE,                                                                                  C070152

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F02317)

         v.

DENNIS LEONTIY,

                   Defendant and Appellant.




         A jury convicted defendant Dennis Leontiy of assault with a firearm (Pen. Code, §
245, subd. (a)(2); count two),1 malicious and willful discharge of a firearm at an occupied
motor vehicle (§ 246; count three), and assault (§ 240) as a lesser included offense to that
charged in count one (assault with a deadly weapon, to wit, a motor vehicle and by means
of force likely to produce great bodily injury). In connection with count two, the jury
found that defendant personally used a firearm (former §12022.5 subd. (a)).



1        Undesignated section references are to the Penal Code.

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       Sentenced to state prison, defendant appeals. He contends the trial court
prejudicially erred in failing to instruct sua sponte on negligent discharge of a firearm.
He also contends that insufficient evidence supports the amount of the jail booking and
classification fees. We reject defendant’s contentions and affirm the judgment.
                                          FACTS
       About 1:45 a.m. on April 8, 2010, Olga Leontiy heard a noise, looked out the
window of her house, and saw two men wearing hoodies inside her son’s (Maksin)
truck.2 The men walked away. She called Maksin who called the police. Her husband,
Nikolay, then left in his white Toyota Tacoma pickup truck to look for the suspects of the
car break-in. Olga also called her other son, defendant.
       Meanwhile, Arthur Shiboyan, driving his red Volkswagen Golf, was taking his
passenger, Jamie Amentler, to her home after a date. Amentler’s home was located a
short distance away from the Leontiy’s home. Suddenly, Nikolay in his white pickup
pulled behind the Golf and closely followed, honking his horn. Shiboyan believed the
pickup wanted to pass but when Shiboyan pulled over, the pickup pulled over. When
Shiboyan sped up, the pickup sped up. Amentler called her father. As they were being
chased by Nikolay, a yellow Acura Integra, driven by defendant, started to follow as well.
Nikolay and defendant continued to follow the victims and Shiboyan headed for a main
thoroughfare where he was able to gain distance between him and Nikolay. Only
defendant was able to keep up and there were no other cars on the road. Shiboyan and
Amentler were frightened. Defendant pulled his car up “very close” behind the Golf.
Shiboyan heard gunshots and the sound of something hitting his car. Amentler did not
hear gunshots but heard “things” like tools or metal hitting the back of the Golf.
Shiboyan pushed Amentler’s head down and she called 911. Amentler told the 911



2      The first names of the Leontiy family are used to avoid confusion; no disrespect is
intended.

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operator that shots had been fired at their car. Two bullet holes were later found in the
right rear of the Golf. One hole was in the right taillight and the other was just above the
right taillight.
        Shiboyan was forced to stop at a deadend where he put his car into reverse.
Defendant crashed his car into the Golf. Nikolay had caught up by this time and rammed
into the passenger side of the Golf. Amentler dropped her cell phone and could not find
it. Shiboyan was able to keep driving, and stopped outside a business where some people
were standing. Shiboyan called 911. As Shiboyan and Amentler waited for the police,
defendant drove back and forth a couple of times, departing before the police arrived.
        Defendant also called 911 and claimed people were shooting at him. When his car
was later inspected, no bullet holes were found. Amentler denied that either she or
Shiboyan shot at anyone. Shiboyan denied that he shot at anyone or had a gun.
        Nikolay returned home with no headlights on and tinkered with them for just a
couple of minutes before the police arrived to investigate the car break-in. The police
later found defendant some distance away from the area of the chase and shooting.
        A gunshot residue test (GRT) done on defendant revealed numerous particles
which were deposited when he had fired or recently fired a firearm or had handled a
recently fired firearm. A GRT done on Nikolay revealed only one particle which
suggested the same.
        Nikolay and defendant were charged with assault with a deadly weapon, to wit, a
motor vehicle. Only defendant was charged with assault with a firearm and shooting at
an occupied motor vehicle. Defendant and Nikolay were tried together but before
different juries. Nikolay testified before both juries, denying that he struck the victims’
car and denying that he had a firearm. He also denied hearing gunshots. Defendant did
not testify. The jury convicted Nikolay of the lesser included offense of misdemeanor
assault.



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                                        DISCUSSION
                                                 I
       Defendant contends the trial court had a duty to instruct sua sponte on the lesser
included offense of negligent discharge of a firearm. We reject defendant’s contention
and conclude that there was no substantial evidence that the offense was less than that
charged.3
       A trial court must instruct sua sponte on all lesser included offenses “when the
evidence raises a question as to whether all of the elements of the charged offense were
present [citation], but not when there is no evidence that the offense was less than that
charged.” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “Under California law, a
lesser offense is necessarily included in a greater offense if either the statutory elements
of the greater offense, or the facts actually alleged in the accusatory pleading, include all
the elements of the lesser offense, such that the greater cannot be committed without also
committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a
lesser included offense, but such instructions are required whenever evidence that the
defendant is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons] could . . . conclude[]” ’
that the lesser offense, but not the greater, was committed. [Citations.]” (People v.
Breverman, supra, 19 Cal.4th at p. 162, original italics.)
       Section 246 provides in relevant part that “[a]ny person who shall maliciously and
willfully discharge a firearm at an . . . occupied motor vehicle . . . is guilty of a felony,
and upon conviction shall be punished . . . .”



3      Defendant raised this issue in his motion for new trial which the trial court denied,
finding there was no substantial evidence for the instruction.

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       Section 246.3, subdivision (a) provides in relevant part that “any person who
willfully discharges a firearm in a grossly negligent manner which could result in injury
or death to a person is guilty of a public offense and shall be punished . . . .”
       People v. Ramirez (2009) 45 Cal.4th 980, at page 990, “conclude[d] that section
246.3(a) is a necessarily included lesser offense of section 246. Both offenses require
that the defendant willfully fire a gun. Although the mens rea requirements are
somewhat differently described, both are general intent crimes. The high probability of
human death or personal injury in section 246 is similar to, although greater than, the
formulation of likelihood in section 246.3(a), which requires that injury or death ‘could
result.’ The only other difference between the two, and the basis for the more serious
treatment of a section 246 offense, is that the greater offense requires that an inhabited
dwelling or other specified object be within the defendant’s firing range. All the
elements of section 246.3(a) are necessarily included in the more stringent requirements
of section 246.”
       “[S]ection 246 is not limited to the act of shooting directly ‘at’ an inhabited or
occupied target. Rather, the act of shooting ‘at’ a proscribed 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.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1356, fn.
omitted (Overman).)
       Defendant misplaces his reliance upon Overman. In Overman, the defense theory
was that the defendant did not shoot “at” anyone or any building but simply fired his
weapon into the air. (Overman, supra, 126 Cal.App.4th at p. 1354.) Overman found that
there was substantial evidence supporting the instruction on the lesser included offense of
grossly negligent discharge of a firearm: no witness testified as to where the defendant
was aiming his rifle when he fired it; no bullet holes were found on any of the buildings;



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and the defendant was an excellent marksman, suggesting he could hit anything at which
he aimed. (Id. at pp. 1362-1363.)
       Here, there was no evidence that defendant did not aim at the Golf and simply shot
his firearm into the air or by accident to support a finding that he discharged a firearm in
a grossly negligent manner. Instead, all the evidence showed that he maliciously and
willfully shot at or in close proximity to Shiboyan’s car. According to both Shiboyan and
Amentler, once they reached the thoroughfare, Nikolay, who was in the pickup, did not
keep up but defendant who was in the Acura pulled up “very close” behind them.
Neither Shiboyan nor Amentler saw where defendant was aiming his gun when he fired it
but Shiboyan heard the gunshots and they both heard the shots hit their car. Defendant
was the only one behind the Golf and was close enough to hit the speeding Golf with
gunshots not once but twice in the right rear passenger side, once in the taillight and the
second time just above it. Shiboyan’s car was absolutely “within the defendant’s firing
range.” (People v. Ramirez, supra, 45 Cal.4th at p. 990.) There was no substantial
evidence to support an instruction on negligent discharge as a lesser included offense to
count three charged against defendant. We find no error.
       Defendant claims that there was evidence that the shots were fired by Nikolay, not
defendant. Nikolay was not charged with assault with a firearm or willful and malicious
discharge of a firearm at an occupied vehicle, only defendant was charged with these
offenses. The GRT performed on Nikolay was inconclusive (only one particle had been
deposited). Although there was testimony about the probable cause statement and
computer automated dispatch logs which contained statements that shots were fired at
Shiboyan and Amentler from the pickup truck, this evidence was not received for the
truth of the matter asserted but to show the affect on the listener. Moreover, the jury
necessarily resolved this issue against defendant in finding that he committed an assault
with a firearm and personally used a firearm. Defendant does not challenge this
conviction and finding on appeal.

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                                               II
       Following the probation officer’s recommendation in his report which defendant
had received, the trial court ordered defendant to pay a $242.29 main jail booking fee and
$27.22 main jail classification fee pursuant to Government Code section 29550.2. There
was no objection. Relying upon People v. Pacheco (2010) 187 Cal.App.4th 1392,
defendant now contends that there is no evidence that these fees were limited to the
actual administrative costs incurred to book and process him. Noting that a deputy
sheriff arrested him, he claims that the incorrect statute was cited (Gov. Code, § 29550.2,
rather than Gov. Code, § 29550, subd. (c)), although conceding that the error is
inconsequential since both statutes require the court to impose the “actual administrative
costs.” He claims that the issue is not forfeited for failure to object as discussed in
People v. McCullough (2013) 56 Cal.4th 589 (McCullough), arguing McCullough
decided a different issue. We disagree with defendant’s reading of McCullough.
       In McCullough, the defendant challenged the imposition of a booking fee without
a finding of the ability to pay. McCullough held that “a defendant who does nothing to
put at issue the propriety of imposition of a booking fee forfeits the right to challenge the
sufficiency of the evidence to support imposition of the booking fee on appeal, in the
same way that a defendant who goes to trial forfeits his challenge to the propriety of
venue by not timely challenging it.” (McCullough, supra, 56 Cal.4th at p. 598.) The
court noted that “the Legislature considers the financial burden of the booking fee to be
de minimis and has interposed no procedural safeguards or guidelines for its imposition.
In this context, the rationale for forfeiture is particularly strong. [Citation.]” (Id. at p.
599.) The court further noted that determining a defendant’s ability to pay was “much
less complex” than determining his sentence. (Ibid.) Disapproving Pacheco,
McCullough stated, “Given that imposition of a fee is of much less moment than
imposition of sentence, and that the goals advanced by judicial forfeiture apply equally
here, we see no reason to conclude that the rule permitting challenges made to the

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sufficiency of the evidence to support a judgment for the first time on appeal ‘should
apply to a finding of’ ability to pay a booking fee under Government Code section
29550.2. [Citation.]” (McCullough, supra, at p. 599.)
         The reasoning of McCullough applies equally to the sufficiency of the evidence to
support an implied finding of the actual administrative costs of booking and processing
defendant. “[B]ecause a court’s imposition of a booking fee is confined to factual
determinations, a defendant who fails to challenge the sufficiency of the evidence at the
proceeding when the fee is imposed may not raise the challenge on appeal.”
(McCullough, supra, 56 Cal.4th at p. 597, italics added.) Defendant’s contentions
regarding both the booking fee and classification fee are forfeited by his failure to object
below.
                                      DISPOSITION
         The judgment is affirmed.



                                                        NICHOLSON              , Acting P. J.



We concur:



      HULL                   , J.



      BUTZ                   , J.




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