Filed 2/21/14 P. v. Wright CA2/1
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B245443

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. GA080814)
         v.

ELI DOMINIC WRIGHT,

         Defendant and Appellant.


In re ELI DOMINIC WRIGHT                                            B250798

         on Habeas Corpus.


         APPEAL from a judgment of the Superior Court of Los Angeles County. Darrell
S. Mavis, Judge. Reversed with directions.
         ORIGINAL PROCEEDING; petition for a writ of habeas corpus. Petition denied.
         Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant,
Appellant, and Petitioner.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.
       Defendant Eli Dominic Wright appeals from the judgment entered following a jury
trial in which he was convicted of shooting from a motor vehicle at a person, in violation
of Penal Code section 12034, subdivision (c).1 Defendant contends the trial court erred
by failing to instruct on an element of the offense, failing to instruct upon discharging a
firearm with gross negligence as a lesser included offense, and awarding the victim
restitution. He further contends the evidence was insufficient to support his conviction.
       We conclude substantial evidence supported defendant’s conviction and the trial
court properly instructed the jury on the elements of shooting from a motor vehicle at a
person. However, we conclude the trial court prejudicially erred by failing to instruct sua
sponte upon the lesser included offense of discharging a firearm with gross negligence in
violation of section 246.3, subdivision (a). Accordingly, we reverse defendant’s
conviction and remand for either retrial or reduction of his conviction to the lesser
included offense.
       Defendant also petitions for a writ of habeas corpus, contending his girlfriend’s
statement to the police was coerced and should have been excluded (though defendant did
not attempt to exclude that statement in the trial court) and trial counsel rendered
ineffective assistance by failing to argue “the chronological impossibility” of defendant’s
alleged confession to the same girlfriend. We deny the petition without prejudice.
Defendant forfeited the issue of the voluntariness of his girlfriend’s statement for the
purpose of this appeal. Our disposition on appeal moots the issue regarding counsel’s
argument.




       1   Undesignated statutory references are to the Penal Code.


                                              2
                                     BACKGROUND
1.     Evidence presented at first trial
a.     Prosecution evidence
(1)    August 1, 2010 fight at liquor store
       Defendant and his girlfriend, Alexis Mason, went to a liquor store in Pasadena
around midnight on the night of July 31, 2010,2 or the early morning of August 1.
Defendant drove and went into the store, while Mason remained in the car. Pasadena
Police Department Detective Keith Gomez subsequently retrieved the recordings from the
liquor store’s surveillance cameras depicting a confrontation between defendant, who had
previously admitted to police that he was a member of the Pasadena Denver Lanes gang,
and Trayvon Thomas, whom Gomez knew to belong to the rival Squiggly Lane gang.
Trayvon Thomas was accompanied by two other known Squiggly Lane gang members.
Trayvon Thomas punched defendant. Defendant seemed upset and left the store without
purchasing anything. Mason testified he seemed angry and told her to drive him to his
friend’s home. During the drive, defendant phoned someone and told the person he had
been in an altercation with, and struck by, a “Squirt” (a derogatory term for a member of
the Squiggly Lane gang). Defendant may have said something about getting revenge.
Mason drove defendant to his friend’s house and waited in the car while defendant spoke
to his friend. Mason and defendant then drove to her apartment and she went to bed.
(2)    August 2, 2010 shooting
       Just after midnight on the morning of August 2, a green SUV or truck drove slowly
west along Del Monte Street in Pasadena. It stopped in front of the driveway for 240 Del
Monte Street, where Trayvon Thomas, Reginald Thomas, Paris Thomas, Tremaine
Woodard, Kenya Larsuel, Courtney Scott, and Shauntice Williams resided with their
grandmother. The house was known as a hangout for Squiggly Lane gang members.
Larsuel, Scott, and Williams were seated in a car parked at the curb in front of 240 Del

       2   Undesignated date references pertain to 2010.


                                              3
Monte, facing east. The driver of the SUV stuck a gun covered by a plastic grocery-type
bag out the driver’s side window and fired a shot toward the driveway.
       The SUV drove a little farther and stopped again in front of the house. Scott told a
police officer in the immediate aftermath of the shooting that the driver of the SUV
stopped right next to her car and fired a shot directly above her car toward the house. The
shooter, who seemed to be alone in the SUV, was laughing and smiling. Scott ducked
and drove east on Del Monte. As she drove away, she heard three more shots. Scott told
the officer she did not see anyone in or around the house at the time of the shooting. At
trial, Scott claimed not to recall the shooting. According to Larsuel,3 Scott drove away
after the first shot was fired, but she heard three more shots. Larsuel also did not see
anyone outside the house at the time of the shooting.
       Officer Todd McDonald responded to the scene and found Tremaine Woodard
lying wounded on the driveway of 240 Del Monte Street behind a partially open vehicle
gate. Woodard had been shot in his lower left abdomen. He survived his wounds.
McDonald stopped Kyle Traub and Trayvon and Reginald Thomas as they tried to flee
and saw Paris Thomas run into the house. McDonald retrieved a mobile phone from the
ground near Traub.
       About 3:00 p.m. on August 2, Gomez found Scott, Larsuel, and Williams at a
restaurant and interviewed all three. He testified that Scott told him she was certain that
the driver of the SUV was also the shooter. When Gomez showed Scott a sixpack
photographic array, she handed it back to him and became uncooperative. Gomez
separately showed Larsuel a different sixpack, and she immediately pointed at
defendant’s photograph and began to tremble. She said the man depicted in the
photograph was the driver and shooter, but she refused to circle the photograph or sign
the sixpack. On August 8 Gomez showed Larsuel a new sixpack containing a more


       3 Larsuel was unavailable at the first trial and her preliminary hearing testimony
was read into the record.


                                              4
recent photograph of defendant, and she again pointed to defendant’s photograph as
depicting the shooter. In her preliminary hearing testimony, Larsuel claimed she pointed
at two photos in the sixpack and said either one of them might have been the culprit. No
one identified defendant at trial.
       Mason testified that defendant phoned her early in the morning and told her that he
had committed a shooting using her vehicle, which was a green Kia Sportage. Mason
“believe[d]” defendant called her “a short period of time after the liquor store incident,”
“around that same morning.” Mason was upset by what defendant had done, and
thereafter defendant did not spend as much time with her.
       No casings or other ballistic evidence was found at the crime scene and the gun
used in the shooting was not recovered. Gomez saw a mark on the chimney that was next
to the driveway gate that may have been caused by a gunshot. He saw damage to the gate
itself, but could not attribute it to gunshots. The police found no damage to the home
opposite 240 Del Monte Street. Gomez subsequently examined Mason’s vehicle and
found no damage consistent with being struck by gunfire.
(3)    Mason’s interrogation
       On August 6 Gomez and Officer Kevin Okamoto arrested Mason because they
believed her vehicle had been used in the shooting. They handcuffed her, took her to the
police station, and Okamoto interrogated her several times while she remained
handcuffed. The officers recorded part of the interrogation, but the recording was not
introduced at the first trial.
       Mason admitted at trial that she initially lied to Okamoto and told him defendant
was not driving her vehicle. Okamoto admitted at trial that he threatened to charge her
with child abuse and neglect and to have her young daughter taken away from her. She
testified she feared losing her child and thought defendant’s use of her vehicle might
create criminal liability for her. She decided she should tell the truth so that she could
reunite with her daughter and not have to worry any more. She denied that she told
Okamoto what he wanted to hear to obtain her own release. She told Okamoto that


                                              5
defendant said he had used her car in a shooting, but the conversation was unclear to her
because she had just awakened and she had been drinking before she went to sleep.
When Officer Okamoto asked Mason if it would “be fair to say that he, basically advised
you he did a shooting against some Squigglys with your car,” Mason replied, “That would
be fair to say, yeah.” Okamoto testified that Mason seemed confused about what day
defendant had told her about the shooting and about his exact wording, but said defendant
told her in person, not over the phone.
       Mason also told Okamoto that she had seen defendant with a disassembled gun,
but she did not think that was the gun used in the shooting. The police found the
disassembled gun in Mason’s apartment. Testing established it did not fire the bullet
recovered from Woodard’s abdomen.
       Okamoto had Mason phone defendant. Defendant did not answer the call, but
phoned Mason back. Okamoto listened to their conversation. Defendant instructed
Mason to lie to the police and tell them the gun in her apartment belonged to someone
other than defendant, she had not seen him since the fight at the liquor store, and she did
not know where he was.
(4)    Defendant’s arrest, interrogation, and surreptitiously recorded custodial
statements
       About 15 minutes after defendant phoned Mason, the police arrested defendant at a
tattoo parlor in Pasadena in the company of other members of the Denver Lanes gang.
Gomez and Okamoto interrogated him at the station. He admitted Mason was his
girlfriend, but claimed he had not seen her for a couple of weeks and had never driven her
car in her absence. He denied any involvement with, or presence during, the shooting.
       Okamoto testified that defendant discussed the shooting with someone who visited
him in jail and the conversation was recorded. According to Okamoto, defendant
“mentioned that he was in custody for the incident that occurred on Del Monte and, in
reality, the individuals that resided on Del Monte had shot at him and he was not the
individual who actually shot in the direction of the Del Monte address.” Okamoto


                                             6
testified that defendant said he was present during the shooting, but was not the shooter.
Defendant also said that the gun recovered from Mason’s apartment was not the one used
in the shooting. He said he had found that gun and disassembled it.
       Gomez testified that in a recorded phone call from jail defendant asked his brother
to get rid of a bag and its contents that defendant had left at the tattoo parlor. Defendant
mentioned clothing and marijuana in the bag.
(5)    Gang evidence
       Gomez also testified as the prosecution’s gang expert. At the time of the charged
shooting, the Pasadena Denver Lanes and Squiggly Lane gangs were enemies. A gang
member’s failure to retaliate after being assaulted would be deemed a sign of weakness
that would diminish both the gang member’s and the gang’s reputation. In contrast,
committing a violent act, including a retaliatory act, would enhance the reputation of both
the gang member and his gang.
       Gomez testified that Woodard was an associate of the Squiggly Lane gang and
Reginald and Paris Thomas and Traub were affiliated with the gang.
       In response to a hypothetical question based upon the prosecution’s evidence,
Gomez opined that the charged shooting would benefit a criminal street gang by
enhancing its image and others’ respect for it, which would in turn allow the gang to
accomplish more.
b.     Defense evidence at first trial
       Kyle Traub testified that on August 2 he and his neighbor J.R. went to a party at
240 Del Monte Street. Traub did not know whose house it was. There were 10 to 15
other people there. When Traub first arrived, he and others were “in the front yard right
in front of the gate in the driveway.” The gate was partially open. A car drove by and
some of the people around Traub “started bitching” about the car driving by. Everyone
then went through the gate into the backyard. The gate remained partially open. A little
later (Traub’s time estimate ran from “a couple of minutes” to 10 minutes), other people
at the party began talking about the same car driving past again. Traub pulled himself up


                                              7
on the gate to look over it and watched the car go past. It was a green SUV. At that
moment, someone in the backyard started shooting. Traub jumped down, turned around,
and saw someone with a gun, a revolver he thought. Traub and everyone else ran. A total
of three to five shots were fired. Traub saw the shooter run out through the gate. Traub
could only describe the shooter as a Black male wearing a hoodie. The person who got
shot had been right by the open end of the gate, near Traub.
        Traub and J.R. tried to flee or hide from the police because they had outstanding
warrants. When Traub saw the police, he tried to discard his mobile phone because it
contained “incriminating stuff” about drugs. Traub had put his “ugly” leather jacket in a
trash can when he first arrived at the party because he thought some girls would be
present.
        Traub did not know the person who got shot. He was not involved with either the
Denver Lanes or Squiggly gangs and did not know whether J.R. was involved with either
gang.
        A crime scene investigator found Traub’s jacket in a recycling bin at 240 Del
Monte Street. A piece of paper in the jacket pocket bore Traub’s name. The investigator
collected the jacket and took gunshot residue swabs from the hands of Traub, Trayvon
Thomas, Paris Thomas, and Reginald Thomas.
        No gunshot residue was found in the swabs of the men’s hands, but gunshot
residue was found on the right sleeve of Traub’s jacket and multiple particles consistent
with gunshot residue found on the left sleeve and both exterior pockets of the jacket. This
indicated that “the jacket was in an environment in which a gun was fired or came into
contact with the source of” gunshot residue, such as a firearm.
2.      Verdict at first trial
        The jury acquitted defendant of two counts of attempted murder (naming Woodard
and Trayvon as victims), but convicted him of shooting from a motor vehicle at a person
(naming Woodard as victim). The jury found true a gang enhancement allegation
(§ 182.22, subd. (b)(1)(C)) and firearm allegations under section 12022.53, subdivisions


                                             8
(b) and (c) (personal use of a gun and personal, intentional discharge of a gun). The jury
could not reach a verdict on the section 12022.53, subdivision (d) allegation (personal,
intentional discharge of a gun, causing great bodily injury), and the trial court declared a
mistrial as to that allegation.
3.     Retrial of section 12022.53, subdivision (d) allegation
       The prosecutor elected to retry the section 12022.53, subdivision (d) allegation.
After a six-day trial, the jury made a not true finding on the allegation. We need not set
forth any of the evidence presented at the second trial because it is irrelevant to the issues
addressed herein.
4.     Sentence
       The court sentenced defendant to a total of 12 years in prison, consisting of the
upper term of 7 years for shooting from a motor vehicle at a person, plus a 5-year gang
enhancement. The court dismissed the first jury’s findings under section 12022.53,
subdivisions (b) and (c) on the ground that use of a firearm was an element of the
offense.4
                                       DISCUSSION
1.     Failure to instruct on subjective awareness of a probability that shots would
hit a person
       Defendant contends that the trial court failed to instruct the jury that to convict him
of shooting from a motor vehicle at a person it must find that he was subjectively aware
of the probability that one or more shots would strike a person. He argues that the
instructions given permitted him to be convicted of the offense “if he acted with mere
gross negligence.”




       4
       Because shooting from a vehicle at a person is not an offense listed in section
12022.53, subdivision (a), the enhancements were statutorily inapplicable.


                                              9
a.     Duty to instruct and standard of review
       “[A] trial court in a criminal case is required—with or without a request—to give
correct jury instructions on the general principles of law relevant to issues raised by the
evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.) This includes
instructing on all of the elements of the charged offense. (People v. Cummings (1993) 4
Cal.4th 1233, 1311.)
       We independently assess whether instructions correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) The correctness of jury instructions is determined
from the entire set of instructions, not just an isolated instruction or part thereof. (People
v. Wallace (2008) 44 Cal.4th 1032, 1075.)
b.     Elements of shooting from a motor vehicle at a person
       Former section 12034, subdivision (c), (now section 26100, subd. (c)), provided,
“Any person who willfully and maliciously discharges a firearm from a motor vehicle at
another person other than an occupant of a motor vehicle is guilty of a felony punishable
by imprisonment in state prison for three, five, or seven years.”
       Shooting from a motor vehicle at a person is a general intent crime. (People v.
Hernandez (2010) 181 Cal.App.4th 1494, 1500–1501 (Hernandez).) Its elements are
“(1) acting willfully and maliciously, and (2) shooting from a motor vehicle at a person
outside a motor vehicle.” (Id. at p. 1501.) “‘Conviction under a statute proscribing
conduct done “willfully and maliciously” does not require proof of a specific intent.
[Citation.]’” (Id. at p. 1500.) Instead, the defendant must merely intend to do the
proscribed act. (Ibid.) “The fact subdivision (c) of section 12034 requires that the
perpetrator shoot ‘at’ a particular target does not transform the crime into a specific intent
offense.” (Ibid.) “‘[T]he act of shooting “at” a proscribed target’” is committed either
when the defendant shoots directly at the proscribed target or “‘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. The defendant’s conscious indifference to the probability that a shooting will


                                              10
achieve a particular result is inferred from the nature and circumstances of his act.’” (Id.
at p. 1501.)
c.     Instructions given
       The trial court used CALCRIM No. 968 to instruct the jury on the elements of
shooting from a motor vehicle at a person: “To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant willfully and maliciously shot a
firearm from a motor vehicle; [¶] AND [¶] 2. The defendant shot the firearm at another
person who was not in a motor vehicle. [¶] Someone commits an act willfully when he
or she does it willingly or on purpose. [¶] Someone acts maliciously when he or she
intentionally does a wrongful act or when he or she acts with the unlawful intent to
disturb, defraud, annoy, or injure someone else.” The court also instructed the jury that
shooting from a motor vehicle at a person was a general intent crime and explained, “For
you to find a person guilty of this crime . . . , that person must not only commit the
prohibited act, but must do so with wrongful intent. A person acts with wrongful intent
when he or she intentionally does a prohibited act; however, it is not required that he or
she intend to break the law.” (CALCRIM No. 252.)
       During its deliberations, the jury sent the court a note asking, in part, “For count 3,
can a shot at a person’s residence qualify as a shot at a person?” The court conferred with
counsel regarding the proper response. With the express agreement of defense counsel
and in reliance upon Hernandez, supra, 181 Cal.App.4th at page 1501, the court provided
the jury with the following written response: “[P]lease incorporate the following
additional language in instruction 968 for Count three: [¶] Someone shoots ‘at another
person’ if he or she shoots in such close proximity to the person that he shows a conscious
indifference to the probable consequence that one or more bullets will strike the person or
persons in or around the target.”
d.     The trial court properly instructed the jury on the elements of the offense
       CALCRIM Nos. 252 and 968 correctly informed the jury of the elements of
shooting from a motor vehicle at a person. (Hernandez, supra, 181 Cal.App.4th at


                                             11
p. 1501.) The court’s additional instruction using both the law and language set forth in
Hernandez properly responded to the jury’s question, which pertained to the scope of the
phrase “shot the firearm at another person” used in CALCRIM No. 968. We believe the
court’s supplemental instruction that “conscious indifference to the probable
consequence” that a person would be struck by a bullet necessarily incorporates the
element of subjective awareness defendant argues was omitted, in that an actor can only
be consciously indifferent to the probability of a result if he is subjectively aware of that
probability.
       Accordingly, we conclude the trial court neither omitted nor misstated an element
of the offense.
2.     Sufficiency of evidence
       Defendant contends the evidence was insufficient to support his conviction. He
specifically argues that there was no evidence he was subjectively aware of a substantial
and unjustifiable risk that he would shoot anyone.
a.     Standard of review
       To resolve an issue of the sufficiency of evidence, we review the whole record in
the light most favorable to the judgment to decide whether substantial evidence supports
the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt.
(People v. Tully (2012) 54 Cal.4th 952, 1006.) Substantial evidence is “‘“evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.”’” (Ibid.) We presume the existence of
every fact supporting the judgment that the jury could reasonably have deduced from the
evidence and make all reasonable inferences that support the judgment. (People v.
Barnes (1986) 42 Cal.3d 284, 303; People v. Catlin (2001) 26 Cal.4th 81, 139.)
b.     Sufficient evidence supports defendant’s conviction
       Defendant’s contention relies upon Scott’s statement and Larsuel’s testimony that
they did not see anyone in the front yard at the time of the shooting. However, reviewing
the entire record—including defense witness Traub’s testimony—in the light most


                                              12
favorable to the judgment, we conclude substantial evidence supports defendant’s
conviction. According to Traub, a party was occurring at 240 Del Monte at the time of
the shooting, with 10 to 15 people in attendance. When Traub arrived, he and at least
some of the other party-goers were in the front yard. Sometime around the time Traub
arrived, a car drove by, upsetting the people at the party. It was the same green SUV that
drove by again at the time of the shooting. The jury reasonably could have inferred that
the driver of the car saw the people in the yard and knew that people were present there.
The people in the front yard then went into the backyard, but the gate remained partially
open. Traub’s testimony about the gate was consistent with that of Officer McDonald,
who found the gate partially open when he responded to the shooting call.
       Notwithstanding the partially closed gate, the people in the backyard were able to
see the car when it came driving down the street again. Their remarks about the car
caused Traub to pull himself up on the gate so he could see over it. When he pulled
himself up on the gate, he saw the same green SUV driving past. The jury reasonably
could have inferred that, because the people in the yard could see the car, the driver of the
car could see them, or the driver at least could see Traub when he pulled himself up to
look over the gate.
       Although Traub also testified the shots came from behind him, the jury was
entitled to reject portions of his testimony and accept other portions. (See People v. Allen
(1985) 165 Cal.App.3d 616, 623.) Based upon the evidence from Scott and Larsuel, the
jury reasonably could have concluded beyond a reasonable doubt that the driver of the
car, not the backyard shooter described by Traub, was the person who fired the shots.
Given the description of the car and Mason’s testimony that defendant admitted
committing a shooting while driving her car, the jury reasonably could have concluded
beyond a reasonable doubt that defendant was the shooter.
       Accordingly, we conclude that substantial evidence established that defendant
willfully and maliciously shot a firearm from a motor vehicle at another person who was
not in a motor vehicle. In particular, substantial evidence supported the jury’s implied


                                             13
finding that defendant fired the gun in “such close proximity to the person that he
show[ed] a conscious indifference to the probable consequence that one or more bullets
[would] strike the person or persons in or around the target,” as the trial court instructed.
In other words, the jury necessarily found that defendant was subjectively aware of a
substantial and unjustifiable risk that he would shoot someone.
3.     Failure to instruct sua sponte upon grossly negligent discharge of a firearm
under section 246.3 as a lesser included offense
       Defendant contends that the trial court erred by failing to instruct sua sponte on a
violation of section 246.3, subdivision (a), negligent discharge of a firearm, as a lesser
included offense of shooting from a motor vehicle at a person. The Attorney General
does not contest that a violation of section 246.3, subdivision (a) is an offense necessarily
included within shooting from a motor vehicle at a person, but argues there was no
evidence supporting conviction of the lesser, but not the greater, offense.
a.     Lesser included offenses and the duty to instruct upon them
       An offense is necessarily included in another if either the statutory elements of the
greater offense or the facts alleged in the accusatory pleading include all of the elements
of the lesser offense, so that the greater offense cannot be committed without also
committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.)
       A trial court must instruct sua sponte on a lesser included offense if there is
substantial evidence that, if accepted by the trier of fact, would absolve the defendant of
guilt of the greater offense but not of the lesser. (People v. Blair (2005) 36 Cal.4th 686,
745.) Substantial evidence in this context is “evidence from which a jury composed of
reasonable persons could conclude that the facts underlying the particular instruction
exist.” (Ibid.)
b.     A violation of section 246.3, subdivision (a) is a lesser included offense of
shooting from a motor vehicle at a person
       To convict a defendant of violating section 246.3, subdivision (a), the jury must
find that “(1) the defendant unlawfully discharged a firearm; (2) the defendant did so


                                              14
intentionally; [and] (3) the defendant did so in a grossly negligent manner which could
result in the injury or death of a person.” (People v. Alonzo (1993) 13 Cal.App.4th 535,
538.)
        People v. Ramirez (2009) 45 Cal.4th 980 (Ramirez) dealt with an analogous
situation. There the issue was whether section 246.3 is a lesser included offense of
section 246, which provides, “Any person who shall maliciously and willfully discharge a
firearm at an inhabited dwelling house, occupied building, occupied motor vehicle,
occupied aircraft, inhabited housecar . . . or inhabited camper . . . is guilty of a felony.”
The California Supreme Court held it was. (Id. at p. 990.) The court explained, “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.” (Ramirez, at p. 990.) The same result had been reached
earlier in People v. Overman (2005) 126 Cal.App.4th 1344, 1360–1361 (Overman).
        By parity of reasoning, a violation of section 246.3, subdivision (a) is also
necessarily included within the offense of shooting from a motor vehicle at a person.
Shooting from a motor vehicle at a person differs from a violation of section 246
(addressed in Overman and Ramirez) only in its requirements that the shooter fire from a
motor vehicle and the “target” be a person who is not in a motor vehicle, as opposed to a
house, building, occupied motor vehicle, or other “target” specified in section 246.
        Accordingly, we agree with defendant’s contention (and the Attorney General’s
implicit concession) that a violation of section 246.3, subdivision (a) is a lesser included
offense of shooting from a motor vehicle at a person.


                                              15
c.     The trial court had a duty to instruct sua sponte on a violation of section 246.3
as a lesser included offense
       Larsuel’s testimony and Scott’s statement to police supported a finding that no one
was in the front yard or visible outside the house when the gunman fired the shot.
Larsuel, Scott, and the third woman in the car were not possible victims within the scope
of shooting from motor vehicle because the statute expressly excludes as victims persons
inside a motor vehicle. There was no evidence that people inside the house could have
been seen from outside at the time of the shooting. There also was no firm evidence at
the first trial of the time elapsed between defendant’s two drives past the house.
Although Traub was present for both passes, he was not paying attention to the time, and
his estimate of the interval between the two passes of the SUV ranged from “just a couple
of minutes” to 10 minutes. Unless the men in the backyard were visible over the gate or
through the opening in the gate, the jury could have inferred that, even if defendant saw
the men on his first pass, he would not have known whether they were still present or had
left the premises. If the jury believed Larsuel and Scott and either disbelieved Traub or
did not infer from Traub’s testimony that the men in the backyard were visible over the
gate or through the opening in the gate, it could have concluded defendant did not
demonstrate “a conscious indifference to the probable consequence that one or more
bullets would strike” a person. The jury could nonetheless have found that defendant
unlawfully and intentionally discharged a firearm in a grossly negligent manner that could
have resulted in the injury or death of a person (and indeed did result in injury), and thus
could have convicted him of a violation of section 246.3, subdivision (a) as a lesser
included offense.
       The Attorney General argues that instruction upon the lesser included offense was
not required because Scott and the other women in the car were in the line of fire when
defendant fired a shot above Scott’s car, Woodard was shot, Mason testified that
defendant “confessed to her that he shot at some Squigglies in her car,” and defendant
“claimed he saw individuals shoot at him.”


                                             16
       None of these arguments are convincing. As noted, the women in the car were not
victims within the scope of shooting from a vehicle at a person. They would have been
“eligible” victims if the prosecutor had instead charged defendant with a violation of
section 246, which includes shooting at an occupied motor vehicle. Woodard’s wound
establishes neither that defendant, as opposed to the mysterious backyard gunman
described by Traub, shot Woodard nor that defendant knew people were present in the
vicinity of his gunfire and thus acted with conscious indifference to the probability a
person would be shot. Mason did not testify that defendant said he shot at Squigglies,
only that he said he had done a shooting “against some Squigglys” while driving her car,
which strongly supports an inference that he knew the house was a Squiggly Lane gang
hangout, but does not establish that he knew anyone was present when he fired the shots.
Finally, there was no evidence that defendant ever said he “saw individuals shoot at him.”
He told a visitor that “the individuals that resided on Del Monte had shot at him and he
was not the individual who actually shot in the direction of the Del Monte address.” The
jury was not instructed on aiding and abetting principles and there was no evidence other
than defendant’s self-serving statements that he had an accomplice. The jury’s verdict
thus demonstrates that the jury rejected defendant’s claim that he did not fire any shots.
Even if the jury had believed the portion of defendant’s statement that people at the house
fired at him, the jury nonetheless could reasonably have concluded that defendant fired
first, without knowing or suspecting people were present, and that someone in the
backyard fired at defendant only after he fired the first shot.
       Accordingly, we conclude that there was evidence that, if believed by the jury,
would have absolved defendant of the greater offense of shooting from a motor vehicle at
a person, but would not have absolved him of a violation of section 246.3, subdivision
(a). Thus, the trial court was required to instruct sua sponte on section 246.3, subdivision
(a) as a lesser included offense of shooting from a motor vehicle at a person.




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d.     The failure to instruct was prejudicial
       The prejudicial effect of an erroneous failure or refusal to instruct on a lesser
included offense is analyzed pursuant to People v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Moye (2009) 47 Cal.4th 537, 541.) That is, the trial court’s error does not
require reversal unless there is a reasonable probability that, absent the error, defendant
would have obtained a more favorable outcome. (Watson, at p. 836.) Where there is “‘at
least such an equal balance of reasonable probabilities as to leave the court in serious
doubt as to whether the error affected the result,’” the error is prejudicial. (People v.
Mower (2002) 28 Cal.4th 457, 484, quoting Watson, at p. 837.)
       We note that although the Attorney General argues that the court did not err, she
does not argue that any error was harmless.
       Had the prosecutor charged defendant with a violation of section 246, we would
necessarily conclude that the failure to instruct upon the lesser included offense was
harmless. But the prosecutor instead charged shooting from a motor vehicle at a person.
The jury’s question (“[C]an a shot at a person’s residence qualify as a shot at a person?”)
strongly suggests that at least some jurors were not convinced that defendant knew that
anyone was present in the vicinity in which he aimed and fired his gun. Notably, the jury
acquitted defendant of attempted murder and could not reach a verdict (at the first trial)
on the allegation that defendant intentionally fired a gun, causing Woodard great bodily
injury. The jury necessarily found that defendant fired a gun and that he intended to do
so. Thus, the failure to reach a finding on the firearm enhancement allegation suggests
the jury may have had doubts about either causation or the extent of Woodard’s injuries,
or both. Given these verdicts, the absence of a finding on the firearm enhancement
allegation, the jury’s question, the undisputed testimony that no one was in the front yard,
and the possibility that the jury could have had a reasonable doubt about whether
defendant knew there were people in the backyard, we conclude there is “‘at least such an
equal balance of reasonable probabilities as to leave the court in serious doubt as to
whether the error affected the result.’”


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       Accordingly, we conclude the failure to instruct was prejudicial and we reverse
defendant’s conviction and remand for retrial or, at the prosecutor’s election, reduction of
the offense to a violation of section 246.3, subdivision (a).
4.     Remaining contentions and habeas corpus petition
       Given our disposition, we need not address defendant’s remaining contentions.
For the purpose of this appeal, defendant forfeited his claim that Mason’s statement was
coerced by failing to seek its exclusion. Given our reversal, counsel’s purported
ineffective assistance in failing to argue chronological impossibilities is of no
consequence. We note that although counsel did not phrase her argument in the
“chronological impossibility” terminology, she argued that Mason’s statement to police
was untrustworthy for reasons that included anger at defendant, coercive tactics by the
police, lies she admittedly told the police, and multiple factual inaccuracies, including
when defendant told her about the shooting. In addition, the chronological impossibility
was obvious from the evidence presented and both Mason and Okamoto testified she was
uncertain about when defendant told her about the shooting. Thus, it is highly doubtful
the petition states a prima facie case regarding ineffective assistance.
       If the prosecutor elects to retry defendant, defense counsel will be able to address
the matters upon which defendant’s habeas corpus petition and the remaining appellate
issues are based. If the prosecutor elects to have the offense reduced to a violation of
section 246.3, subdivision (a), defendant will be able to raise any appropriate claims in a
new appeal or petition for a writ of habeas corpus, including the issue of ineffective
assistance.




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                                    DISPOSITION
      The judgment is reversed and the cause is remanded for further proceedings in
accordance with this opinion. The petition for a writ of habeas corpus is denied without
prejudice.
      NOT TO BE PUBLISHED.


                                                MILLER, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




      *   Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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