Ct.App. 4/1 D055671 San Diego County Super. Ct. No. SCS212840 Court: Superior County: San Diego Judge: Timothy R. Walsh
The opinion of the court was delivered by: Baxter, J.
Penal Code section 246 (section 246) makes it unlawful for any person to maliciously and willfully discharge a firearm at an occupied motor vehicle. In this case, defendant was convicted of violating section 246 by standing outside his truck and shooting Jose Valadez, a passenger. Defendant argues that because the gun had crossed the threshold of the truck at the time of the shooting, the gun was not "discharged 'at' the vehicle" but was instead discharged "within" the vehicle. According to defendant, "[w]hat matters under section 246 is what the shooting is 'at,' a determination that depends on the location of the discharge (the tip of the gun), not the location of the shooter." The Court of Appeal decided this was a reasonable construction of section 246 and invoked the rule of lenity to reverse defendant's conviction for shooting at an occupied vehicle.
Although we agree that the statutory text alone is susceptible of more than one interpretation, including an interpretation favoring defendant, reliable extrinsic aids to statutory construction convince us that the Legislature intended section 246 to apply to a person standing outside an occupied motor vehicle and shooting into it, even if the gun has crossed the plane of the vehicle. Because we can discern the Legislature's intent in enacting section 246, there is no need to invoke the rule of lenity as "a tie-breaking principle" in this case. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1102, fn. 30.) We therefore reverse the judgment of the Court of Appeal insofar as it reversed defendant's section 246 conviction and the accompanying true findings on the firearm and great bodily injury allegations.
Defendant was convicted of the first degree murder of Jose Valadez (Pen. Code, § 187, subd. (a)),*fn1 the attempted premeditated murder of Jose Estrada (§§ 664/187), and shooting at the occupied vehicle in which Valadez and Estrada were seated (§ 246) causing great bodily injury (§ 12022.7, subd. (a)), all by personal use of a firearm (§§ 12022.5, subd. (a), 122022.53, subds. (b) & (d)). Defendant was also convicted of unlawful possession of ammunition. (§ 12316, subd. (b)(1).) In a bifurcated proceeding, defendant admitted allegations that he had suffered two prior felony convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), two prior serious felony convictions (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). He was sentenced to 150 years to life, plus a consecutive five-year determinate term. The issue on appeal concerns only the conviction for shooting at an occupied vehicle (for which punishment was stayed under section 654), and the statement of facts is limited accordingly.
On August 23, 2007, Valadez and his friend, Estrada, were walking near a convenience store in San Ysidro as defendant drove by in his truck. Valadez flagged down defendant, who had tattooed Valadez's right wrist, to ask for another tattoo. Defendant agreed, and Valadez and Estrada got in the truck. Defendant drove to his apartment to get his tattoo equipment.
About 20 minutes later, defendant returned to the truck, drove to the corner of the apartment's parking lot, and stood next to the driver's seat with the door open. He pulled a gun from his waistband and placed it on the seat. Valadez asked whether he could see the gun--a 7.62 x 25 mm Tokarev pistol that was commonly used in the Soviet military. Defendant instead picked up the gun, extended his arm, pointed it at Valadez and Estrada, and pulled the trigger, but the gun did not fire. Defendant removed the magazine, pulled out a bullet, and reloaded the gun manually. Then he aimed the gun and pulled the trigger again. This time, the gun fired. The bullet struck Valadez in his left cheek; a large fragment lodged in his brain. With an "evil trippy face" defendant pointed the gun at Estrada, but the gun misfired. The prosecution theory was that defendant shot Valadez to steal methamphetamine, worth up to $1,000, that was hidden in Valadez's cell phone.
The gunshot wound proved fatal. Steven Campman, a forensic pathologist, testified that based on the lack of stippling near the entry wound, the gun must have been at least two to three feet away from Valadez's head at the time of the shooting. Campman testified that Valadez's injuries were consistent with the gun's being about 27 inches away. Photographs of a police reenactment of the crime, which was based on Estrada's and Campman's testimony and which used the same truck and a replica of the gun, depicted the gun inside the threshold of the truck (and about 27 inches from Valadez's cheek) at the time the shot was fired. As for defendant himself, Estrada told police that defendant's "whole body" was outside the truck at the time of the shooting.
The Court of Appeal reversed the conviction for shooting at an occupied vehicle because of insufficient evidence. The court reasoned that, under the rule of lenity, section 246 must be construed as excluding the discharge from a firearm that has crossed the plane of an occupied motor vehicle: "[E]ven if the People are correct that section 246's language can be reasonably construed as prohibiting the discharge of a firearm within an occupied motor vehicle by a person standing outside the periphery of the vehicle, we nevertheless must adopt the alternative reasonable construction that section 246 does not prohibit such conduct." The court thus disagreed with People v. Jones (2010) 187 Cal.App.4th 266, which had reached a contrary conclusion on similar facts. Because of this published conflict, we granted review on our own motion to decide whether a defendant can be convicted of violating section 246 if the defendant was outside the vehicle at the time the firearm discharged, but the firearm itself was inside the threshold of the vehicle.
Section 246 makes it an alternative felony-misdemeanor for "[a]ny person . . . [to] maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, . . . or inhabited camper . . . ." This case arises from the fatal shooting of Jose Valadez, a passenger in a motor vehicle, by defendant, who was standing outside the vehicle but had thrust the gun into the vehicle at the time he fired the weapon. Whether a person who discharges a firearm that has crossed the plane of the vehicle but is himself outside the vehicle can be said to have violated this statute depends, as the parties concede, on the construction of the word "at." Defendant argues that "at" must be measured from the location of the firearm, such that any shooting that occurs after the firearm has crossed the plane of the vehicle is inside--not at--the vehicle. The People, on the other hand, contend that "at" is to be understood from the perspective of the shooter, and that a person can shoot at an occupied vehicle as long as the shooter is outside the vehicle.
Statutory construction begins with the plain, commonsense meaning of the words in the statute, " 'because it is generally the most reliable indicator of legislative intent and purpose.' " (People v. Skiles (2011) 51 Cal.4th 1178, 1185.) "When the language of a statute is clear, we need go no further." (People v. Flores (2003) 30 Cal.4th 1059, 1063.) "At," however, is a short word with a long list of possibilities, " '[a] preposition of extremely various use, to which lexicographers have given many definitions and shades of meaning. It is a word of great relativity and elasticity of meaning and is somewhat indefinite, shaping itself easily to varying contexts and circumstances, and taking its color from the circumstances and situation under which it is necessary to apply it to surrounding objects. Aside from its context, it is not a word of precise and accurate meaning, or of clean, clear-cut definition, and it has been said that the connection furnishes the best definition.' " (People v. Stepney (1981) 120 Cal.App.3d 1016, 1019, fn. 3.)
The parties agree that the relevant definition of "at" in this statute is "[o]f motion directed towards: In the direction of, towards, so as to get at; often with hostile intent, 'against'; in to run, rush, go, have, throw, shoot, let drive, aim, etc. at." (1 Oxford English Dict. (2d ed. 1989) p. 739.) Accordingly, one may restate section 246 as prohibiting any person from maliciously and willfully discharging a firearm in the direction of or towards an occupied motor vehicle. But this dictionary definition does not resolve whether the connection contemplated by the word "at" is to be measured by the relationship between the shooter and the vehicle (as the People contend) or by the relationship between the firearm and the vehicle (as defendant contends). In common parlance, it can be reasonable to say that a person who is standing outside a vehicle and fires a weapon has shot at, in the direction of, or towards the vehicle, even if the tip of the weapon has crossed the threshold of the vehicle. On the other hand, we cannot conclude that the plain meaning of the statutory text necessarily excludes the construction proposed by defendant. Either interpretation seems reasonable.
Because of this ambiguity, "[i]t is appropriate to consider evidence of the intent of the enacting body in addition to the words of the measure, and to examine the history and background of the provision, in an attempt to ascertain the most reasonable interpretation." (People v. Canty (2004) 32 Cal.4th 1266, 1277.) We may also consider extrinsic aids such as the ostensible objects to be achieved, the evils to be remedied, and public policy. (Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) When construing a statute, "our goal is ' "to ascertain the intent of the enacting legislative body ...