IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
May 10, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOGINDER SINGH GILL, DEFENDANT AND APPELLANT.
(Super. Ct. No. LF011134A)
The opinion of the court was delivered by: Robie , J.
P. v. Gill
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Joginder Singh Gill challenges his conviction for shooting at an occupied building on the grounds of insufficiency of the evidence and instructional error. Finding no merit in either of his arguments, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late December 2008 and early January 2009, defendant worked at a gas station in Thornton. Defendant had recently purchased a car and, to make more money, wanted to switch to the night shift where employees received two hours of overtime pay. He asked his co-worker Hafiz Imran, who worked five nights a week, if he could switch shifts with him. Imran told defendant to talk to the manager, Nasim Tarin, about any possible shift changes.
When he talked to Tarin, defendant told Tarin that it was Imran who wanted to change shifts because Imran was afraid of working at night. When Tarin asked Imran about switching shifts, Imran said he was not afraid to work at night and did not want to switch shifts with defendant. Also around this time, Imran told defendant that, although defendant came to work on time, defendant needed to log on to the register earlier so Imran did not have to stay after his shift was over. Following these events, defendant and Imran stopped speaking to one another.
On January 5, 2009, at approximately 1:08 a.m., defendant drove by the gas station while Imran was working and fired one gunshot through the middle window of the station. The bullet travelled through the top of the window frame, entered the store, and continued to travel into the ceiling. The bullet did not exit the building and was never found. After firing, defendant made a U-turn and drove away.
Security cameras at a neighboring gas station recorded a blue Mustang, belonging to defendant's daughter, driving through the neighboring station and onto Thornton Road at the time of the shooting. Defendant's daughter had let defendant borrow her car because his car was in need of repair.
On January 8, 2009, a similar event occurred at the gas station. This time, however, one shot was fired from a blue minivan into the gas station. Defendant later admitted driving past the gas station at the time of both the shootings, being the only occupant of the cars, and carrying a gun. Defendant never admitted to firing a weapon.
Defendant was charged with two counts of shooting at an occupied building and two counts of attempted murder for the January 5 and January 8 shootings. The jury found defendant guilty of shooting at an occupied building for the January 5 incident but was hung as to the attempted murder charge for that date and found defendant not guilty of both charges for the January 8 incident. The prosecution dismissed the attempted murder charge and the court sentenced defendant to three years in prison.
I Sufficiency Of The Evidence
Defendant challenges the sufficiency of the evidence to support his conviction of shooting at an occupied building. In particular, he contends that shooting at an occupied building is a specific intent crime and there was insufficient evidence to prove that he intended to hit the building.
Penal Code section 246 provides in pertinent part as follows: "Any person who shall maliciously and willfully discharge a firearm at an . . . occupied building . . . is guilty of a felony . . . ." A recent California Supreme Court case held that Penal Code section 246 is a general intent crime. (People v. Ramirez (2009) 45 Cal.4th 980, 985, fn. 6, 990.) Defendant, however, asserts that "a careful analysis of the statute and of all the case law that should be consulted will lead to reversal here."
We start our analysis of applicable case law with Ramirez. In Ramirez, the court addressed whether grossly negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a)) is a necessarily included offense of shooting at an occupied building. (People v. Ramirez, supra, 45 Cal.4th at pp. 983, 985, 990.) To resolve this issue, the court applied the "'elements'" test for determining whether one offense is necessarily included in another. (Id. at p. 985.) The Ramirez court explained that "[u]nder the 'elements' test, we look strictly to the statutory elements, not to the specific facts of a given case," and "[w]e inquire whether all the statutory elements of the lesser offense are included within those of the greater offense." (Ramirez, at p. 985.) In looking at the statutory elements of shooting at an occupied building, the Supreme Court in Ramirez specifically stated that Penal Code section 246 is a general intent crime. (Ramirez, at p. 985, fn. 6, citing People v. Watie (2002) 100 Cal.App.4th 866, 879; People v. Jischke (1996) 51 Cal.App.4th 552, 556; People v. Froom (1980) 108 Cal.App.3d 820, 826.)
In an effort to avoid Ramirez, defendant, in a footnote, essentially claims that Ramirez is not binding on this court because its holding that a violation of Penal Code section 246 is a general intent crime is dictum. Specifically, he asserts that "[i]n [Ramirez], the California Supreme Court noted that this body of case law describes Penal Code section 246 as defining a general intent crime, but the Supreme Court has never actually analyzed this issue or issued a holding on the subject." We find this claim misguided.
"The ratio decidendi is the principle or rule which constitutes the ground of the decision, and it is this principle or rule which has the effect of a precedent. It is therefore necessary to read the language of an opinion in the light of its facts and the issues raised, to determine (a) which statements of law were necessary to the decision, and therefore binding precedent, and (b) which were arguments and general observations, unnecessary to the decision, i.e., dicta, with no force as precedents." (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1168.)
In deciding the case, the Ramirez court applied the "'elements'" test to determine if grossly negligent discharge of a firearm is a necessarily included offense of shooting at an occupied building. As part of the "'elements'" test, it was necessary for the court to list all elements of both crimes; these elements included the intent element of both crimes. The court stated, "[b]oth offenses require that the defendant willfully fire a gun. Although the mens rea requirements are somewhat differently described, both are general intent crimes." (People v. Ramirez, supra, 45 Cal.4th at p. 990.) Determining the intent requirement of shooting at an occupied building was necessary to the court's decision because it was a part of the analysis the court needed to perform to make its ultimate determination. Therefore the court's determination is binding on this court.
Because we are bound by the Ramirez decision, our analysis "of all the case law that should be consulted" ends here, and defendant's argument that Penal Code section 246 is a specific intent crime is without merit.
As the legal premise of defendant's sufficiency of the evidence challenge is unavailing, we need not, and do not, examine the evidence. Defendant has not offered any argument that the evidence was insufficient if shooting at an occupied building is a general intent crime. Thus we conclude defendant has failed to meet his burden of establishing the evidence is insufficient to sustain his conviction for shooting at an occupied building.
II Instructional Error
Defendant next challenges his conviction on the ground of instructional error. He contends the trial court erred by instructing the jury with CALCRIM No. 965, which requires proof of general intent to find a defendant guilty of shooting at an occupied building. Once again we find defendant's argument lacks merit.
As stated above, shooting into an occupied building is a general intent crime. Given that fact, the court did not err in its jury instruction.
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. HOCH , J.
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