Madera County Super. Ct. No. MCR021366. Ct .App. 5 F050212. Judge: John W. DeGroot.
The opinion of the court was delivered by: Corrigan, J.
Here we hold that grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a))*fn1 is a necessarily included offense of discharge of a firearm at an inhabited dwelling (§ 246).*fn2
I. FACTUAL AND PROCEDURAL BACKGROUND*fn3
Several Chowchilla police officers went to an apartment where a man was reportedly holding a gun to a woman's head. After the officers identified themselves and ordered the occupants to come out, Sergeant David Noblett knocked on the front window. Immediately, a shotgun was fired through the window. Noblett was not struck, but was knocked backwards by the blast and hit with glass. He took cover behind a car. Two to six more shots were fired from the window.
Defendant's wife Samantha briefly emerged carrying their five-year-old daughter, but returned to the apartment with the child. Two or three more shots were fired from the window; additional shots came from a rear window.
The officers again ordered the occupants to come out. Samantha did so. But after she set the child on the ground and told her to go to the officers, Samantha went back inside. Chief Jay Varney picked up the child and ran for cover.
After several more shots came from inside the apartment, Samantha again emerged, saying that defendant had put down his gun. Defendant then came out with his hands up. He said, "I am your man, the gun's on the couch."
Some shots fired during the standoff struck three neighboring apartments. In one, a slug pierced three walls. The bedroom where an eight-month-old girl was sleeping was in the pathway of the one-ounce projectile. In another apartment, shotgun pellets broke a window and hit the living room wall. An occupant sustained a minor injury.
Defendant testified that, although he fired through the window after hearing the police officers knock and identify themselves, he was not shooting at them.
Defendant was convicted, inter alia, of 10 counts of grossly negligent shooting and three counts of shooting at an inhabited dwelling.*fn4 While the record would support a higher number, the Court of Appeal assumed that defendant fired only 10 shots, based on the fact that 10 spent shells were found in defendant's apartment. Here, the parties agree that three of the grossly negligent shooting counts and the three counts of shooting at an inhabited dwelling were based on the same acts.
Defendant was sentenced to 15 years to life, plus 30 years four months. Defendant contends that three of the grossly negligent shooting convictions must be reversed because that crime is a lesser included offense of shooting at an inhabited dwelling. The Court of Appeal disagreed and affirmed the judgment. We reverse the judgment as to three of the grossly negligent shooting counts.
In California, a single act or course of conduct can lead to convictions "of any number of the offenses charged." (§ 954; see People v. Montoya (2004) 33 Cal.4th 1031, 1034 (Montoya).) However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692; People v. Pearson (1986) 42 Cal.3d 351, 355.)
There are two tests for determining whether one offense is necessarily included in another: the "elements" test and the "accusatory pleading" test. (See generally People v. Lopez (1998) 19 Cal.4th 282, 288.) We apply the "elements" test here because this case involves the conviction of multiple alternative charged offenses. "Courts should consider [both] the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under the "elements" test, we look strictly to the statutory elements, not to the specific facts of a given case. (See, e.g., People v. Murphy (2007) 154 Cal.App.4th 979, 983-984.) We inquire whether all the statutory elements of the lesser offense are included within ...