Shooting

Penal Code section 246

Statute

Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.

As used in this section, “inhabited” means currently being used for dwelling purposes, whether occupied or not.

Intent

"[Penal Code section 246] proscribes shooting either directly at or in close proximity to an inhabited or occupied target under circumstances showing a conscious disregard for the probability that one or more bullets will strike the target or persons in or around it. "(People v. Overman (2005) 126 Cal.App.4th 1344, 1360.)

The act of shooting “at” an inhabited or occupied target was defined in People v. Chavira (1970) 3 Cal.App.3d 988, 83 Cal.Rptr. 851 (Chavira ). There, the defendant and his associates fired several shots at persons “congregated in front of, and on the driveway leading to” an inhabited dwelling. (Id. at p. 993, 83 Cal.Rptr. 851.) The defendant argued that the evidence was insufficient to support his section 246 conviction, because he did not fire “at” the dwelling but “at” persons outside it. (Id. at p. 992, 83 Cal.Rptr. 851.) The court rejected this argument, noting that “[d]efendant and his associates engaged in a fusillade of shots directed primarily at persons standing close to a dwelling.” (Id. at p. 993, 83 Cal.Rptr. 851, fn. omitted.) On this basis, the court reasoned, “[t]he jury was entitled to conclude that they were aware of the probability that some shots would hit the building and that they were consciously indifferent to that result. That is a sufficient ‘intent’ to satisfy the statutory requirement [of section 246].”

Aider and abettor

In view of Hernandez, we reject the key premise of Gales's contention. Although White may have had the specific intent to fire the gun at the building, that particular intent was not, in fact, required for White's commission of the crime: as explained above, White's state of mind was sufficient for the crime, provided that he intentionally fired the gun “in such close proximity to the target that he show[ed] a conscious indifference to the probable consequence that one or more bullets w[ould] strike the target.” (Overman, supra, 126 Cal.App.4th at p. 1356, 24 Cal.Rptr.3d 798.) For that reason, Gales's status as an aider and abettor was not dependent on whether he knew of, or shared, White's particular intent to shoot at the building. Rather, under the circumstances presented here, to establish Gales's status as an aider and abettor, it was sufficient to demonstrate that Gales knowingly and intentionally encouraged White to shoot the gun under circumstances showing that Gales—like *319 White—was consciously indifferent to the probable consequence that the bullets would strike the building. People v. White (2014) 230 Cal.App.4th 305, 318–319 [178 Cal.Rptr.3d 583, 593]

Lesser included offense

PC246.3 is LIO of PC246. (People v. Ramirez (2009) 45 Cal.4th 980, 985; People v. Overman (2005) 126 Cal.App.4th 1344, 1360.)