PEOPLE v. MANZO

Respondent's Opening Brief on the Merits

Cal.July 13, 2011

Iu the Supreme Court of the State of Californta THE PEOPLE, - Plaintiff and Respondent, V. MARTIN MANZO, Defendant and Appellant. Fourth Appellate District, Division One, Case No. D055671°S98rick County Superior Court, Case No. SCS 212840 The Honorable Timothy R. Walsh, Judge nn Case No. 8191400 JUL 1 § 293 K, Onirion Clarke ena, PeQuty RESPONDENT’S OPENING BRIEF ON THE MERITS KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General Gary W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising DeputyAttorney General CHRISTINE LEVINGSTON BERGMAN Deputy Attorney General State Bar No. 225146 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2247 Fax: (619) 645-2271 Email: Christine.Bergman@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented .........ccccccccesseceseeceesneesseeeesseceesereeseseseseneseeesneeesesseeesseeeeeeneeese 1 Introduction ..c.ccccccscessessesssesscesescsecsecscsecessceecsesecaeeeseeeeseceesevsasesueessuceseesansaees 1 Statement of Facts and Case............desuevavasavsssescsesesessseseeseseseseseeeeetseesseseereess 2 ALQUMENEoo.eee eseceeeeeseeeescseceeeseeeenennessessenessecseeeeseeteeeeseaseaseeseeenensesnecgeneeey 5 I. A defendant may be convicted of discharging a firearm at an occupied motorvehicle in violation of Penal Code section 246 if he was outside the vehicle at the time he dischargedhis firearm but the firearm itself wasinside the Vehicle ...........cccccesececessseeeeseeceesseeseesseeesseeeeenees 5 A. Penal Code section 246.......:..ccsccssesscesessecesseeeeseeeeeees 6 B Legislative history of Penal Code section 246........... 8 C. Judicial decisions interpreting section 246............... 10 D A person standing outside an occupied vehicle with the gun and/orhis or her handinside the vehicle while discharging a firearm is shooting “at” the occupied vehicle within the meaning of Penal Code section 246........ccccesseesseeesesssssssseseenes 17 CONCIUSION ........cccsccseccccsccccccecerccsssevsssccessesscsscseucsseeescetsesseenscsaeessestesuesvaveses 27 TABLE OF AUTHORITIES Page CASES Burris v. Superior Court (2005) 34 Cal.4th 1012 o.ceecccscecesesereeeeeseeseerensnsnereeersesesneeenenessssseseeneens 25 City ofSanta Monica v. Gonzalez (2008) 43 Cal.4th 905 ..cccccccseseesesssesseesseseeeeresesssessesesesesssseeseesenedeneenenes 18 Curle v. Superior Court (2001) 24 Cal4th 1057 v.ccccceccscsesesscseseseneeeereeseeersssscessesensesssssasreneenenensaseeey 7 Durham v. Commonwealth (1930) 31 S.W.2d 603 oo... ccccssesesesseeeeceeseteneesteneeseetsneeseecesteseeeseeseseneseneeseees 22 English v. State (1912) 74 S.E. 286 viceccsccscsesesesensessecseseeeessneeseenseersnstseesserseeessessesesssenenenees 21 Jordan v. Board ofSup’rs of Tulare County (1950) 99 Cal.App.2d 356 ....cescccccssseeenesssenenseeneteneneressenstanenesssenssnenenesenens 21 Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th TBO voieccccscesscssccessesseeesesessncecseeesessesesseesaeeesssessasanessseeeeesaeeats 7 Moskalv. United States (1990) 498 U.S. 103 [111 S.Ct. 461, 112 L.Ed.2d 449]eee25 People v. Anderson (1987) 43 Cal.3d 1104 ...cccecccsseeteeeteeeereneetesnssnensssseseessnsssesensesensenenerneatees 8 People v. Avery . (2002) 27 Cal.4th 49 oo. ececcseseseseseessecsstseseneceenessenseeesssesesenessersesscaes 24, 25 People v. Baker (1968) 69 Cal2d 44 oii iccccceesesseseesseeessnenereesesetereceessenerersenaneneeevenensenes 8 People v. Bamberg (2009) 175 Cal.App.4th 618 ....cccccsceeeseneseeeeseseereeeereesetenersenensenesernneees 24 People v. Bostick (1996) 46 CalApp.4th 287 oc ccccsseseseesentessesseseecneeecnesessserersssenenscnensees 19 ii People v. Canty (2004) 32 Cal.4th 1266 o..cccccccccsecseesssenenesseeneeeetienesetssnesseseresenseeeserenseey 7 People v. Chavira (1970) 3 Cal.App.3d 988 oo... cccececsseseseneeeeteneteseeteeeeseeeesesensenentees 10, 13, 22 People v. Cruz (1995) 38 Cal.App.4th 427 oo.ccccsccseseseseeeeeeeetereeterersecnesesiseeseesssseeeseenes 11 People v. Hallner (1954) 43 Cal.2d 715 .cccccceceessseeseseseeseenesesnecsseseersecneneesssseetesasienerecenees 8 People v. Hansen (1994) 9 Cal.4th 300 occceeecneessseeseseseesesessesecenenseseseerereseeesestentess 16, 21 People v. Jefferson (1999) 21 Cal.4th 86 occecccsecssseseresesseseneseseceesnseeesseesnenerensserensnesesneneeey 7 People v. Jischke (1996) 51 Cal.App.4th 552 occccecsssseseeecsesesseteneesesaeeenecsteseseesenens 12, 23 People v. Jones (2010) 187 Cal.App.4th 266 0... ccceccssseseeeenresnereeteeseeerisestsesnerseeeeespassim People v. Morales (2008) 168 Cal.App.4th 1075 oo. ccccccseseessseeeseseesesensensenenseresesteseraeeeenens 13 People v. Morrison (2011) 191 CalApp.4th 1551 vc. cccecsesseensessenenscsaeeenestensersenesnsaeees 8, 24 People v. Murphy (2001) 25 Cal.4th 136cescsescrsescsereessessrseceecseneesecesesecsseeesenestenereesaeenes 7 People v. Overman (2005) 126 Cal.App.4th 1344 vic cccccccesseceseeneenenesseeseteeteeeseenernenespassim People v. Ramirez (2009) 45 Cal.4th 980 oceanscovesesesunerssncesesoenssessesee 7, 17, 21, 26 People v. Stepney (1981) 120 CalApp.3d 1016 woeecessesscseereeteceessesenecteseensseesenespassim STATUTES Assem, Amend. to Assem. Bill No. 414 (1949 Reg. Sess.) April 7, 1949... .ccccccsessseseeneteeseeteenenseeeeenssaetensesnenaenes 9 Assem. Bill No. 414 (1949 Reg. Sess.) as introduced Jan. 12, 1949, § Liv. cecsceeseeeeeeeeteeses 9 iii Penal Code SAcccccsssescscsesensestsnscscscseseeeeeecseeneceessessessenenssssessseasseseeeesaneesersnaneasenacnens 8, 25 — § 187, SUD. (8)...cece ceeeteneteeseseteeeeteceeensnenesesesesessneaasesseneneserseserenneneaetaes 4 § 243.3 (A) ceecsececcssesessssecseceserseseececenenscsssseneneteneresssesessessesenenesssssesenanensaeteesnens 17 § 246. eecescccsescsessesescssscsesesaeecsnseeeseenersnsesssnenensssasenessesteseseevaneeneesaenenrasesspassim §§ G64/187 oes ecteeeereeees becunececuceseueuscscuceaeeceececsuseeeetenesoeseuaseeaeesenseeesags 4 § O67 Svcescecssesssssssecsscesesssceneesuseeseesavessecssnesseccessseasecesenssecsuessecsensereseenecenteensesys 4 § 667, SUDA. (A)(L) ..ceeeeccceesseseceeecesseseesteteteeeeeeenetersanenscsesenessesasenenesasnenenerares 4 § 667, Subs. () — (i) ceeeceesesteeseessessesseeseesnesseessecsnecnsneseseneenceneniseneeneenssseseeeees 5 § OOS. eseecceccccenceeeseseesesesessssseesesesesseeessseesseeensasisienersssssenscssessseseeensenenenentags 4,5 SLLTOL2. eceeeeescesescsseseeeseecssesssevensesesenesenenceesensereaserssssaseersaseceesscsenenesenaeneeans 5 § 1192.7 SUDA. (C)...eececsccescseseseseteeeneeseseeteneestenererseetsnseseeeseneeeseseseaenneseees 5 § 12022.5, SUDA.(a)... ceccscceeresseeecesesenetenererenenstensesecasaeseessenenenseasetnenenaenenens 4 § 12022.7, SUD. (a)... eeecccecssseeseeseenenenseseeseeneeesenteessensteeeneneesasieesensesenennnees 4 § 12022.53, subds.(b) & (A)... cceeeecceeseeesereteneeeeerserteeeetssenseteseerenesseenenseees 4 § 12022.55...cccecesceesreseesseesscessssesesesseseseececseerenersesesseessestssesineesesseneeseets 18, 19 § 12316, subd. (D)(1)) ....cecccceessesesesseeeseeeeeneneeterererstsesnsesesseneneereseseeenesnenes 4 Vehicle Code § 23110, SUB. (D) oo. eeccecccceceeeereteneeeteeeesneeneneeenereeeestenseeceessneeessenenens 9, 20 OTHER AUTHORITIES Assem. Comm. on Crim. Jus. on Assem.Bill No. 3303 (1975-1976 Reg. Sess.) April 7, 1976 [proposed amendment]...........cccetereteseeseetees 9 CALCRIM NO. 965 vc cccccsssssccessessesssescesecesceeecsecneresenseecesssussucsseseesnseneeeseeesseseeereseeeeneentegs 7 CALJIC No. DOB ceccccsescsccsscssseesscseesseceseccaecseseesecercsenssssssseesesasssecsasenesesesssessessdeneseasenteaeens 12 Sen. Comm. on Judiciary, com. on AB 3303 (1975-1976 Reg. Sess.) as amended May 5, 1976 ........ssssssseeseeteeenes 9, 10 Stats. 1949 Chapter 698, § 1 osbesees Lescacaecesecaeeeaeceeeecessuareneceeeeeereneetesesnsesenaeens 8 Stats. 1976 Chapter 1119 § 1 soeavecesecasecensessneeenescentecnnerarsniesanesstssneesnesssenavesssensseesD Stats. 1977 Chapter 690 § Lo.cee cesesseeeseeseeseesseeeeseeeensseesttetstiansaae 9 Stats. 1978 Chapter 579 § 13 oo. ecscscesscnsssessessseesseesesesseesseaeesersenersesseraeeneseats 9 Stats. 1982 Chapter 136 § 2 vscssntststvtvtnststatsnatntsnieiasasae baseeaeeennneeeee 9 Stats. 1986 Chapter 1430 § 1, Chapter 1433 § 1 00...eeespeeneseestenssesnenennens 9 Stats. 1988 Chapter 911 SL ee eeeecceeeeeeercesseseeessesesssessseseesesseseeesseeessaeneeensesegeenaeegs 9 iv Webster’s 3d New International Dictionary (1981)........cccsecesesseeeeeeteeeteeteeees 21 Witkin & Epstein, California Criminal Law (3d ed. 2000) Introduction to Crimes, § 24 .....cccsessceessseecseseeneeseneeeereeenecteenenennersisnenss 25 ISSUE PRESENTED Whether a defendant can be convicted of discharging a firearm at an occupied motor vehicle in violation of Penal Code! section 246, if he was outside the vehicle at the time he dischargedthe firearm, but the firearm wasitself was inside the vehicle? INTRODUCTION On an August afternoon in 2007, appellant drove his two passengers, Jose Valadez and Jose Estrada, to the back of his apartment complex and parkedhis truck. Appellant got out of the truck and pulled a gun outofhis waistband. Appellant stood nextto his truck. He pointed the gun towards Valadez and Estrada, and pulled the trigger. After the gun misfired once, appellant fatally shot Valadez in the left cheek. As relevanthere, the jury convicted appellant of shooting at-an occupied vehicle. The Court of Appeal reversed the conviction, finding the evidence insufficient to support a finding that the firearm wasoutside the periphery of the vehicle. This Court should reverse the Court of Appeal’s decision becauseit contravenes the legislative intent and purpose behind section 246, and conflicts with other California Court of Appeal decisions based on similar facts. The purpose of section 246 is to protect the vulnerable victims inside the occupied vehicle or other enumerated structures. This goal is met whether the shooter is three feet from the vehicle, or standing next to it with the firearm inside the vehicle. In both situations, the occupant of the vehicle is essentially trapped, while the shooter has the unfair advantage of being able to avoid a counterattack and to rapidly escape after committing the crime. Thus, this Court should find that a-defendant may be convicted of discharging a firearm at an occupied motor vehicle in violation of section ' All future statutory referencesare to the Penal Code unless otherwise indicated. 246 if he was outside the vehicle at the time he dischargedthe firearm, but the firearm itself was inside the vehicle. STATEMENT OF FACTS AND CASE ’ On the afternoon of August 3, 2007, Jose Valadez and Jose Estrada got into appellant’s truck. Appellant had previously tattooed “Catalina” on Valadez’s wrist, and he was going to perform some more tattoo work on Valadez. (9 RT 1480-1481, 1483, 1491-1492; 1539; 12 RT 2221; 2 CT 298-299, 304, 321, 330, 336.) The menbriefly stopped at appellant’s apartment in Chula Vista to retrieve appellant’s tattoo gun. Appellant drove his white Ford truck to the back of his apartment complex and parked . in a stall. (8 RT 1229, 1231, 1309-1310; 9 RT 1480-1481, 1483, 1491- 1496.) He gotoutofthe truck and stood next to the driver’s side seat while Estrada and Valadez stayed in the truck. Appellant pulled a handgun out from his waistband. (9 RT 1496-1497, 1509-1510; 12 RT 2218; 13 RT 2261; 2 CT 299, 302, 306-308, 311, 331.) He smiled and placed the gun on the driver’s seat. (9 RT 1497, 1578; 2 CT 302, 309, 311-312, 331.) . Valadez, who was leaning forward replacing a shoelace, asked if he could see the gun. (9 RT1497, 1578; 12 RT 2219; 2 CT 339-340.) Appellant pickedup the gun,pointed it at Estrada and Valadez,and pulled the trigger. The gun did not fire. (9 RT 1498, 1501; 2 CT 298-299, 302, 312, 331, 339.) Removing the magazine fromthe gun, appellant manually loadedthe firearm. (9 RT 1501-1503; 2 CT 307-308, 332.) Appellant pointed the gun towards Estrada and Valadez and again pulled the trigger. This time, appellant shot Valadez in the left cheek. Valadez began bleeding profusely. (9 RT 1498, 1503-1504; 2 CT 298-299, 302, 309, 332.) Appellant then pointed the gun at Estrada andpulled the trigger. The gun did notfire. (9 RT 1506; 2 CT 298, 305, 339.) After ordering Estrada to push Valadez out the passenger door, appellant got back into the truck and drove away. (9 RT 1505, 1571, 1577-1579; 12 RT 2224-2225; 13 RT 2262-2263.) After appellant was apprehended,police found a dismantled handgun inside a cooler in the bed of the truck. (5 RT 628-629.) The slide release for the handgun wasfound onthe driver’s side floorboardof the truck, in between the floorboard and the seat. (5 RT 631-632.) During an interview with Chula Vista Police Detective Thomas Brown, Estrada described appellant’s position when he discharged the gun. After appellant parked the truck, he openedthe driver’s side door and got out of the truck. (2 CT 307.) Estrada said appellant’s whole body wasout of the car and the truck door was open. (2 CT 308-309.) Appellant took the gun out of his waistband andsetit on the seat of the truck. (2 CT 311- 312.) Appellant then pickedup the gun, and it misfired once. After reloading the gun, appellant shot Valadez. (2 CT 312.) Attrial, Estrada demonstrated for the jury how appellant was standing while holding the gun. Appellant held the gun in his right hand at approximately shoulder height with his arm about three-quarters extended. (9 RT 1510.) | Demond Dukes, a resident at appellant’s apartment complex, told Detective Brownthat after he heard a “pop,” he looked out of his apartment and saw the shooter standing outside the driver’s doorof the truck with the door open. The shooter had a gunin his left hand, pointed towards the ground. (12 RT 2113-2115.) Dr. Steven Campman,a forensic pathologist, testified that the gunshot wound was an “atypical distance gunshot wound.” (8 RT 1244-1245, 1253-1254.) This meantthat the bullet was deformedbeforeit hit the body so it caused multiple holes and some smaller tears. There was no soot or stippling on Valadez’s face. (8 RT 1254-1255.) Dr. Campman opinedthat the shooter wasat a “distant range” from the victim because there was no soot or sheering, or stippling. (8 RT 1286.) A distant range gunshot wound could be anything from twoto three feet away,or farther; far enough away so that gunpowderdoesnothit the skin. (8 RT 1284-1285.) Dr. Campman could not exactly determine the distance of the muzzle from the victim’s skin, but knew it was far enough awayto leave no stippling. (8 RT 1286- 1287.) With most handguns, over 27 inches wouldleaveno stippling. (8 RT 1288-1289.) The same weapon would needto be fired to determine the exact distance the muzzle was from the skin to see when sootor stippling would no longerbeleft on the skin. (8 RT 1287, 1290.) In January 2009, three detectives from Chula Vista Police Department created a reenactmentofthe shooting. (9 RT 1452.) The reenactment was based on Estrada’s statementto the police and forensic evidence. (9 RT 1461.) Photographsofthe reenactment were shown to the jury. (Exh. Nos. 140 — 150; 9 RT 1454-1459.) Exhibit numbers 143 through 148 showed the person depicting appellant holding the gun and pointing it towards the two passengers. Exhibit numbers 149 and 150 showed a tape measure being held from the cheek ofthe “victim” to the muzzle ofthe replica firearm, and 27 inches was marked on the tape measure. (9 RT 1455- 1459.) A San Diego County jury found appellant guilty of murder (count1; § 187, subd. (a)); shooting at an occupied vehicle (count 2; § 246); attempted murder (count 3; §§ 664/187); and unlawfully possessing ammunition (count 4; § 12316, subd. (b)(1)). The jury foundtrue the firearm enhancements associated with counts 1 and 2 (§§ 12022.5, subd. (a) & 12022.53, subds. (b) & (d)), and count 3 (§§ 12022.5, subd.(a) & 12022.53, subd. (b)). With respect to count 2, the jury also found appellant inflicted great bodily injury (§ 12022.7, subd. (a)). (2 CT 558-570.) Appellant admitted the following prior conviction enhancements: three prison priors (§§ 667.5 & 668), two serious felony priors (§§ 667, subd. (a)(1), 668, & 1192.7, subd.(c)), and twostrike priors (§§ 667, subds. (b) — (i), 1170.12, & 668). (2 CT 571.) Thetrial court sentenced appellant to 150 years to life plus 5 years in state prison. (2 CT 469-470, 572-573.) Appellant appealed, contending, among otherthings, that insufficient evidence supported his conviction for shooting at an occupied vehicle. On January 31, 2011, the Court of Appeal for the Fourth Appellate District, Division One,issued a published decision affirming the convictionsfor first degree murder, attempted murder, and unlawfully possessing ammunition, and reversing the conviction for discharging a firearm at an occupied vehicle. As pertinent here, the Court of Appeal agreed with appellantthat the evidence wasinsufficient to establish he shot at an occupied vehicle. On March 14, 2011, appellant filed a petition for review raising various challenges to his convictions. On May 18, 2011, this Court denied appellant’s petition for review and ordered, on its own motion, review limited to the issue stated above. ARGUMENT I. A DEFENDANT MAYBE CONVICTED OF DISCHARGING A FIREARM AT AN OCCUPIED MOTOR VEHICLE IN VIOLATION OF PENAL CODE SECTION 246 IF HE WAS OUTSIDE THE VEHICLE AT THE TIME HE DISCHARGED HIS FIREARM BUT THE FIREARM ITSELF WASINSIDE THE VEHICLE In 1949, prosecutors and law enforcement groups sponsoreda bill because of the increasing frequency of shootings into homesbyreckless, irresponsible and malicious persons. As a result, the Legislature enacted Penal Code section 246, which prohibited malicious and willful discharge of a firearm at an inhabited dwelling house or occupied building. The purposeofthis newlaw wasto prevent injury or death to the people inside the dwelling house or building. Overthe years, this statute has been amendedto include an occupied motor vehicle, an inhabited house car or inhabited camper, and an occupiedaircraft. The Court of Appeal’s decision in the instant matter, holding that because the firearm and appellant’s hand, and possibly part of his arm, may have beeninside the vehicle when he discharged the gun, the evidence was insufficient to sustain a conviction undersection 246, must be reversed. _ The decision underminesthe intent and purposeofsection 246, and conflicts with other California Court of Appeal’s holdings based on similar facts. This Court should hold that when a person is standing outside a vehicle, but the firearm and/orthe part of the shooter’s body holding the firearm is inside that vehicle, the person is shooting “at” the vehicle for purposes of Penal Code section 246. Section 246 wasoriginally enacted to, protect individuals in their homes, and later amendedto include individuals inside vehicles. A person outside a vehicle has an unfair advantage over a “sitting duck” inside the vehicle; section 246 protects the vulnerable victim inside from the possibility of injury or death. This does not change whether the shooter is three feet away, or holdingthe firearm inside the vehicle. Thus, one whois shooting into a vehicle is also shooting at or towardsthat vehicle and should be held accountable under section 246. A. Penal CodeSection 246 Penal Codesection 246 provides: Anyperson whoshall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied air craft, inhabited house car,. .., or inhabited camper, . . ., is guilty of a felony, and upon - conviction shall be punished by imprisonmentin the state prison. for three, five, or seven years, or by imprisonmentin the county jail for a term of not less than six monthsand not exceeding one year. Asusedin this section, “inhabited” means currently being used for dwelling purposes, whether occupied or not. (Pen. Code, § 246.) Thus,in orderto be convicted of shooting at an occupied motor vehicle, the prosecutor must prove (1) the defendantwillfully and maliciously shot a firearm and (2) the defendant shotthe firearm at an occupied motor vehicle. (CALCRIM No.965.) The principles governing statutory interpretation are well established. As this Court has observed,its “‘role on in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purposeofthe law.’” (People v. Canty (2004) 32 Cal.4th 1266, 1276, quoting Curlev. Superior Court (2001) 24 Cal.4th 1057.) In approaching this task, the court will “first go to the wordsofthe statute, giving the languageits usual, | ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meantwhatit said, and the plain meaningofthestatute governs.” (Curle v. Superior Court, supra, 24 Cal.4th at p. 1063.) To the extent ambiguity exists, a reviewing court examines the contextofthe language, keeping in mindthe nature and obvious purposeofthestatute, adopting the construction that best harmonizesthe statute internally and with related statutes. (See People v. Murphy (2001) 25 Cal.4th 136, 142; People v. Jefferson (1999) 21 Cal.4th 86, 94.) It is well settled that the proper goal of statutory construction ‘is to ascertain and effectuate legislative intent, giving the wordsofthe statute their usual and ordinary meaning. Whenthe statutory languageis clear, we need go no further. If, however, the language supports more than one reasonable interpretation, we look to a variety of extrinsic aids, including the objects to be achieved,the evils to be remedied, legislative history, the statutory scheme of which the statute is part, contemporaneous administrative construction, and questions of public policy. [Citation.]’ (People v. Ramirez (2009) 45 Cal.4th 980, 987, quoting Moran v. Murtaugh Miller Meyer & Nelson, LLP (2007) 40 Cal.4th 780, 783.) Further, the Penal Code expressly states that “[t]he rule of the commonlaw,that penal code statutes are to bestrictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and promote justice.” (Pen. Code, § 4; see People v. Hallner (1954) 43 Cal.2d 715, 720- 721; People v. Morrison (2011) 191 Cal.App.4th 1551, 1556.) At the same time, it is well settled that courts maynot create an offense by enlarging a statue, or by addingor deleting words,or giving false meaning to words. (People v. Baker (1968) 69 Cal.2d 44, 50.) Whileit is true the defendantis entitled to the benefit of every reasonable doubt regarding the language | used in a statute, this canon “entitles the defendant only to the benefit of everyrealistic doubt.” (People v. Anderson (1987) 43 Cal.3d 1104, 1145, superseded by statute on another ground.) Asthis Court has observed, This rule of construction ‘is not an inexorable command to override commonsense and evidentstatutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.’ [Citations.] Or in the words of Justice Black, writing for the court in United States v. Raynor (1938) 302 U.S. 540, 552, 58 S.Ct. 353, 359, 82 L.Ed. 413, the rule does not ‘require[ ] that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nordoes any rule require that the act be given the ‘narrowest meaning.’ It is sufficient if the words are given their fair meaning in accord with the evident intentof [the legislative body].’ (People v. Anderson, supra, 43 Cal.3d atp.1145.) B. Legislative History of Penal Code Section 246 Penal Code section 246,as originally enacted in 1949, made it a crime for any person: [W]ho shall maliciously and willfully discharge a firearm at an inhabited dwelling house or occupied building,. . . (Stats. 1949, ch. 698, § 1, p. 1200.) Section 246 was introduced as Assembly Bill 414, as Anactto add Section 246 to the Penal Code, relating to the discharging offirearmsor throwing of missiles into dwelling houses or occupied buildings. (See Assem. Bill No. 414 (1949 Reg. Sess.) as introduced Jan. 12, 1949, § 1, emphasis added.) | Although the word “into” wasusedin thetitle of the bill, the body of the bill used the word “at.” The first amendmentto the bill changed the word “into”in thetitle to “at,” and limited the act to discharging a firearm. (See Assem. Amend. to Assem. Bill No. 414 (1949 Reg.Sess.) April7, 1949.) In People v. Stepney (1981) 120 Cal.App.3d 1016, the Court of Appeal noted this change and interpreted the change to allow prosecution of those whoshootat a building but miss. (Id. at p. 1020.) Section 246 has been amendedsix times. The amendmentseither augmented the punishmentfor the offense, or added additional types of occupied or inhabited spaces protected by the statute. (See Stats. 1976 ch. 1119 § 1; Stats. 1977 ch. 690 § 1; Stats. 1978 ch. 579 § 13; Stats. 1982 ch. 136 § 2; Stats. 1986 ch. 1430 § 1, ch. 1433 § 1; Stats. 1988 ch 911 $1.) As relevant here, the 1976 amendment added “or occupied motor vehicle”to the statute. (Stats. 1976, ch. 1119, § 1.) Before this amendment, the law madeit a felony to discharge a firearm at a vehicle or occupantthereofwith the intent to do great bodily harm. (See former Veh. Code, § 23110, subd.(b).) The proposed change madeit a felony to discharge a firearm at an occupied motorvehicle, and eliminated the requirementof an intent to commit great bodily harm. It also moved the crime from the Vehicle Code to the Penal Code. (See Assem. Comm. on Crim.Jus. on Assem.Bill No. 3303 (1975-1976 Reg. Sess.) April 7, 1976 [proposed amendment].) The purposeof the amendmentwasto “[{s]trengthen the law prohibiting the discharge of a firearm at a motor vehicle.” (Sen. Comm.on Judiciary, com. on AB 3303 (1975-1976 Reg. Sess.) as amended May5, 1976, pp. 1-2.) “The requirement that the prosecution prove that the defendant intended great bodily harm has hampered efforts to obtain convictions in serious cases.” (Ibid.) C. Judicial Decisions Interpreting Section 246 Several appellate courts have examined the meaningof “at” in section 246. In People v. Chavira (1970) 3 Cal.App.3d 988 (Chavira), the defendant was convicted under section 246 for shooting at a crowd of people standing around a house. (Jd. at pp. 990-991.) The defendant | challenged his conviction, claiming he was shooting at the people, not the dwelling. (id. at p. 992.) The Court of Appeal affirmed the conviction, holding the jury could find the defendant was aware of the probability that someshots would hit the building, thereby endangeringits inhabitants, and was consciously indifferent to the result. (Id. at p. 993.) In People v. Stepney, supra, 120 Cal.App.3d 1016, the Court of Appeal examined whether shooting a firearm while standing inside an inhabited dwelling was a violation of section 246. There, the defendant climbedthrough a window ofa houseafter an occupant of the house would not open the door. (/d. at p. 1018.) After the defendant found outhis intended victim was not home,he said to the intended victim’s roommate, “Tt]his is a syndicate business and weare not playing any games.” (Jbid.) The defendant then shot the victim’s television set. (/bid.) On appeal, the defendant claimed his conviction should be reversed becausesection 246 only prohibited shootingat the specified targets from the outside. (/bid.) The Court of Appeal agreed: Weconcludethatthe firing of a pistol within a dwelling house doesnot constitute a violation of Penal Code section 246. The most that can be said for petitioner’s conduct wasthat he intentionally discharged a pistol within a dwelling. Becausethat conduct wasnot proscribed bythe statute under which he was 10 prosecuted, his conviction must be reversed. Wecarefully note, however,that a different question would be presented if a person fired a weapon from one apartmentinto an adjoining apartment, either through the commonwall, or through the flooror ceiling. A different question would also be presentedif an individual discharged a firearm in a hallway of a multiple family dwelling. Wemakethese references to emphasize that our decision here is limited to the discharge of a firearm within a dwelling. (Stepney, supra, at p. 1021.) The Stepney court noted that the word “‘at’ is a word of many meanings,” and that “an argument[could] be made that one can shootat a building or automobile from within as well as from without.” (People v. Stepney, supra, at p. 1019.) The Court of Appeal also noted there waslittle information regardingthe legislative intent behind the statute, but as originally proposed,the statute prohibited discharginga firearm “into”a dwelling. Before the bill was enacted, “into” was changedto “at.” (dd. at p. 1020.) The Court of Appeal agreed with the defendant’s interpretation that this change was madeto enable the prosecution of those who discharge a firearm at a building but miss. (/bid.) In People v. Cruz (1995) 38 Cal.App.4th 427, the Court of Appeal relied on Chavira to uphold a conviction under section 246 where the defendant shot at a security guard throughthe glass door of a building. There, the defendant claimed the word “at” in the statute required “the intent to strike” the building. (/d. at p. 431.) The Court of Appeal rejected this claim, and noted that even if the statute required such intent, the evidence was sufficient because in order to shoot the security guard from outside the building, the bullet had to go through the glass doorof the building before striking the victim. (/d. at p. 433.) In 1996, the Court of Appeal examined one ofthequestions left open by the Stepney court, and concluded a defendantstanding in his own apartment and shooting throughthe floor into the apartment below was 11 dischargingthe firearm “at” an inhabited dwelling within the meaning of section 246. (Peoplev. Jischke (1996) 51 Cal.App.4th 552, 556.) The Jischke court also heldthat the statute did not require the defendant intend to strike the targeted structure because section 246is a general intent crime. (Id. at p. 556.) In People v. Overman (2005) 126 Cal.App.4th 1344, the defendant - was convicted of shooting at an occupied building where heshotinto the air near a wall of an open-air industrial yard that he knew was occupied by workers. (Id. at pp. 1351-1355.) On appeal, the defendant arguedthetrial court erred by failing to instruct that the intent element of section 246 required proof a defendant shot directly “at” an occupiedbuilding. (Id. at p. 1355.) There,after being instructed with CALJIC No.9.03 regarding shooting at an inhabited dwelling, the jury asked, “if the term ‘shootingat an occupied building’ [implies] that the building hasto be the actualtarget, or shooting in the proximity of an occupied building . . .” (Ibid.) In response,thetrial court instructed, [A]n act done with reckless disregard of probable consequences is an act done with intent to cause such result within the meaning of the words usedin the instruction related to Count [5]. If you concludethat the defendant was aware ofthe probability that some shots would hit the building and that he was consciously indifferent to that result, that is .. . a sufficient intent to satisfy the statutory requirement. (Ibid.y Division Twoofthe Fourth District Court of Appeal foundthe instruction proper: As we explain, section 246 is not limited to shooting directly at an inhabited or occupied target. Rather, it 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 aroundit. (id. at pp. 1355-1356.) 12 Relying on Chavira, the Overman court further held that “section 246 is not limited to the act of shooting directly ‘at’ an inhabited or occupied target.” (People v. Overman, supra, 126 Cal.App.4th at p. 1356.) Rather, the act of shooting “at” a proscribed targetis also committed when the defendant shoots in such close proximity to _ the target that he showsa consciousindifference to the probable consequencethat one or more bullets will strike the target or personsin or around it. The defendant’s conscious indifference to the probability that a shooting will achieve a particularresult is inferred from the nature and circumstancesofhis act. (Id. at pp. 1356-1357, footnote omitted.) Additionally, the Overman court disagreed with the defendant’s reliance on Stepney: “Stepney does not stand for the proposition that section 246 requires discharging a firearm directly ‘at’ an inhabited or occupiedtarget.” (/d. at p. 1358.) In People v. Morales (2008) 168 Cal.App.4th 1075, the Court of Appeal found the defendant was improperly convicted under section 246 whenhe wasstanding in an attached garage andfired three or four shots through the kitchen doorinto the house. (/d. at pp. 1079-1081.) The Morales court compared the case to Stepney, and foundthat because the defendant was “within” the dwelling when he dischargedthe gun, he was not firing “at” as required by section 246. (dd.at p. 1081.) Recently, in People v. Jones (2010) 187 Cal.App.4th 266, Division Oneofthe Fourth District Court of Appeal held that a defendant was properly convicted under section 246 even if the jury believed the defendant’s hand and/or the gun wereinside the vehicle when shefired the weapon. In Jones, the defendant obtained a gun from the engine compartmentof a vehicle and shotinto the vehicle, hitting the victim sitting inside. (Jd. at p. 269.) The evidence established the doorsto the vehicle were closed and no windows were broken. (/bid.) During jury deliberations, the jury asked whetherit was a violation of section 246 if a person wasoutside the vehicle but her hand and/or the gun were inside the 13 vehicle when shedischargedthe firearm. (Jones, supra, at pp. 270-271 ) Upon agreementfrom counsel, the trial court answered yes. (Jbid.) On appeal, the defendant arguedthat“at” as used in section 246 did not include a situation where one discharges a firearm within the relevant structure, which would include the situation where one’s handor the gun broke the planeofthe structure when the discharge occurred. (People v. Jones, supra, at p. 272.) The Court of Appeal disagreed, rejecting the defendant’s argumentthat there was“no logical distinction between the conduct in Stepney and the conduct at issue here.” (Id. at p. 272.) | After observing that the Stepney court limited its holdingto the facts before it, the Court ofAppeal rejected the defendant’s argumentthat the relevant inquiry was whether the gun was “within”the structure when discharged. (Jones, supra,at p. 272-273.) The Jones court did not believe that the Stepney court, intended to suggest that the relevant question is whether the gun is within or without the structure whenit is fired, but, rather, whether the person whofires the gun is within or withoutthe structure. The facts in Stepney did notraise the possibility that a gun might be within a structure while the individual shooting it is outside ofthe structure, and the Stepney court appeared to assumethat the gun would be discharged from the samelocation as the person doingthe firing, vis-a-vis the structure. (Id. at p. 273, fn. 4.) The Jones court further stated that a person would not normally be considered to be “within”a vehicle “if only her hand, or an object that she is holding in her hand, has broken the plane of the vehicle through an open window or door.” (Jones, supra, at pp. 273-274.) “Rather, in order to be considered to be ‘within’ a vehicle, a person’s entire body,or a large portion of the person’s body, would haveto be inside the vehicle.” (People v. Jones, supra, at pp. 273-274.) Thus, Jones concluded the defendant was 14 not “within” the vehicle when shefired the gun for purposesof section 246. (Jones at pp. 273-274.) The Jones court further observed,“the prohibition against discharging a firearm ‘at’ the structures listed in section 246 mustinclude a prohibition against discharging a firearm ‘into’ those same structures.” (Jones, supra, at p. 274.) The court referred to the change from “into” to “at” when section 246 was enacted, and agreed with the Stepney court’s conclusion that the change was meantto allow prosecution of those who shootat a building but miss. (Jbid.) “Considered from this perspective, it seems clear that one whostands outside an occupied vehicle and sticks her hand and/or firearm into the vehicle and shoots is firing into the occupied vehicle.” _ (Ubid.) The Jones court said it would not be reasonable to assume the Legislature meant for there to be a different result if a person placeshis handorthe firearm, “entirely or partially, through an open door or window andfires into a vehicle while standing a foot away from the vehicle,” as opposed to if the person, while standing in the sameposition, discharges the firearm without placingit or his hand into the vehicle. (People v. Jones, supra, 187 Cal.App.4th at p. 274.) “In both situations, the occupantof the vehicle is particularly vulnerable, in that the victim has minimal opportunities to escape or otherwise protect himself from the bullets.” (Ibid.) “In addition, in both situations, the shooter has the advantage of mobility over a captive victim.” ([bid.) Lastly, in the present case the Court of Appeal disagreed with the reasoning ofJones, and interpreted the language “at” in section 246 to require that the firearm beoutside the vehicle (or dwelling) in orderto violate the statute. The Court of Appeal relied on People v. Stepney, supra, 120 Cal.App.3d 1016 and the ruleof lenity in reaching its conclusion. The Court of Appeal found that because the evidence established that appellant 15 was standingin the open doorwayofthe truck with all or part of his arm inside the truck, and the gun was inside the truck, he did not shoot “at” an occupied vehicle within the meaning of the statute. The Court of Appeal acknowledgedthat in Jones a different panel of Division One reacheda different conclusion,finding the trial court properly instructed the jury that someone whostoodoutside a vehicle but held the gun inside the vehicle would be guilty of violating section 246. The Court of Appeal found Jones did not address whetherthe rule oflenity would or should apply to the required construction of section 246, and declined to follow its holding. (Slip opn. at pp. 36-43.) This Court has examined section 246 only twice, and neither case presented the issue here. In 1994,this Court examined section 246 to determine whether willful discharge of a firearm at an enumerated target was an inherently dangerous felony under the second degree felony-murder rule. (People v. Hansen (1994) 9 Cal.4th 300.) This Court concluded that it was, noting the crime, “considered in the abstract, involves a high probability that death will result and therefore is an inherently dangerous felony underthe governing principles.” (Id. at p. 309.) In so holding,this Court observed, The tragic death of innocent and often random victims, both youngand old,as the result of the discharge offirearms, has become an alarmingly commonoccurrencein our society — a phenomenonofenormous concern to thepublic. By providing notice to persons inclined to willfully discharge a firearm at an inhabited dwelling — even to those individuals who would do so merely to frighten or intimidate the occupants, or to ‘leave their calling card’ — that such persons will be guilty of murder should their conductresult in the all-too-likely fatal injury of another, the felony-murder rule may severto deter this type of reprehensible conduct, which hascreateda climate offear for significant numberof Californians even in the privacyoftheir own homes. (People v. Hansen,supra, at p. 311.) 16 In 2009, this Court considered whether grossly negligent shootingis a necessarily includedlesser offense of shooting at an inhabiteddwelling. (People v. Ramirez, supra, 45 Cal.4th 980.) In Ramirez, the defendantshot through a window and walls of his own apartmentinto other apartments, and was convicted of multiple counts of grossly negligent shooting and three counts of shooting at an inhabited dwelling. (Jd. at p. 983.) This Court reversed three of the counts for grossly negligent shooting after finding the crime wasa lesser included offense of shooting at an inhabited dwelling. (/d. at pp. 985-990.) This Court observed, “[t]he high probability of human deathor personal injury in section 246is similarto, although greater than, the formulation of likelihoodin section 243.3(a), which requires that injury or death ‘could result’.” (/d. at p. 990.) This Court further said the reason for harsher treatment undersection 246is because the crime requires “an inhabited dwelling or other specified object be within the defendant’s firing range.” ([bid.) D. A Person Standing Outside an Occupied Vehicle with the Gun and/or His or Her Hand Inside the Vehicle While Discharging a Firearm is Shooting “At” the Occupied Vehicle Within the Meaning of Penal Code Section 246 . Asstated above, section 246 is violated when a person intentionally discharges a firearm either directly at a proscribedtarget (e.g., an occupied building or vehicle), or in close proximity to the target under circumstances showing a consciousdisregard for the probability that one or more bullets will strike the target or persons in or around it. (People v. Overman, supra, 126 Cal.App.4th 1344, 1361.) No specific intent to strike the target, kill or injure persons, or achieve any other result beyondshootingat or in the generalvicinity or range ofthe target is required. (/bid.) “The defendant’s conscious indifference to the probability that a shooting will achieve a 17 particular result is inferred from the nature and circumstancesofhis act.” (Overman, supra, at pp. 1356-1357.) Interpreting “discharge a firearm at . . . an occupied motorvehicle”to include discharging the firearm towardorin close proximity to the vehicle promotesthe policy considerations behind section 246. A statute should be construed so as bestto effectits purpose. (City ofSanta Monica v. Gonzalez (2008) 43 Cal.4th 905, 919.) Section 246 is intended to protect peoplein or around structures from attacks aimedat the structures by people outside them. Asstated above,as originally drafted, what became Section 246 forbade shooting “into” a building. (People v. Stepney, supra, 120 Cal.App.3d at p. 1020.) The Legislature substituted “at” for “into” in order to cover the situation where the shooter misses the building. (/bid.) There is no indication that by this change the Legislature intended to disapprove shooting “into”a building, or to exclude any form of shooting “into” a building. In reaching through a vehicle windowor door from the outside, one reaches into a vehicle. If one shoots at the same time, it would seem a matter of common understandingthat oneis not only reaching into the vehicle, but shooting towards orat it as well. The important consideration is that the shooter’s body is outside the vehicle. Defining the crime based on how manyfeet the shooter is from the vehicle would result in absurd consequences, and contravenethe Legislature’s intent to protect the occupants inside of the vehicle. | | Byparity of reasoning, in the reversesituation, one shoots from a vehicle even if his hand is outside while the shots are fired. Penal Code section 12022.55 penalizes shooting “from” a motor vehicle. Respondent has found no indication that anyone has ever claimed, as a defense to section 12022.55, that the hand wielding the gun extended outside the vehicle window,though that must be a common occurrence. Such a 18 defense would makenosense,as at least part of the purpose of section 12022.55 is to address the fact that “firing a gun from a motor vehicle is an especially treacherous and cowardly crime,” becauseit “allows the perpetrator to take the victim by surprise and make a quick escape to avoid apprehension.” (People v. Bostick (1996) 46 Cal.App.4th 287, 292.) In shooting from a vehicle, whether the gun (and the handbearingit) is inside or outside the vehicle is of no import; what mattersis that the vehicle gives a shooter inside a vehicle an advantage over a target outside the vehicle, even if the gun is also technically “outside” the vehicle. What mattersis wherethe shooteris. A similar functional analysis applies to why the Legislature would wantto specifically criminalize shootinginto an occupied car. A vehicle occupantis an easy target because the vehicle restricts immediate movement. The occupant, often restrained by seatbelts, or pinned in place by the steering wheel, the center console, and the seats themselves,is held relatively immobile bythe vehicle, and cannot quickly get out ofthe vehicle to seek cover. Unless the vehicle is armored, the vehicle itself will provide none. Noneofthese considerations is negated if the shootersticks the gun throughthe vehicle window;indeed, in that situation things only get worse for the trapped vehicle occupant. Thesalient characteristics of shooting into a vehicle are that the shooteris likely to havea tactical advantage over the vehicle occupant, an advantage that comes from having his or her body outside the vehicle while the target is trapped inside, and one that is not diminishedifhis or her hand extendsinsideto trigger the actual discharge. | Considering the fundamental nature of the crime, and recognizing the Legislature intended the statute to embrace shooting “into” an enumerated target, there is no reason to concludethat it is the placement of the gun hand,rather than the placementofthe shooter, that determines whether 19 section 246 has been violated. The Legislature’s substitution of “at” for “into” is consistent with the reason it enacted section 246 in the first place: to protect people inside buildings from indiscriminate attacks by people outside the buildings, and to prevent criminals from escapingliability for these attacks. If appellant reachedinside the vehicleto fire, he shot “at” the ‘vehicle, and violated section 246. Finding that a defendant whois outside a vehicle with the firearm and/or his hand inside the vehicle at the time the firearm is dischargedis not a violation of section 246 would unduly limit the scope of the section 246 offense. This would conflict with the underlying purposeofthestatute, i.e. to protect the occupantsofthe vehicle (or other enumerated structure). The fact that before the 1976 amendmentto section 246, the crime specifically prohibited shooting at a vehicle or occupant thereof (see former Veh. Code, § 23110, subd. (b), emphasis added), demonstrates the ' legislative intent to protect occupants inside the vehicle, thus prohibiting shooting into the vehicle. From the point of view of the occupants of a vehicle,it is more important whetherthe shooter’s body is inside or outside than whetherthe gun is. One whoshoots from outside is often effectively blocked from the vehicle occupants. This is true whether the shooter is sticking the gun through an open door or windowtothe vehicle, oris firing from across the street. Thus, while there may be a reasonfor the law to distinguish between one who shoots from a position inside a vehicle and one who shoots from outside, there is no reason to distinguish between one whoshoots from outside by reaching inside the vehicle and one who shoots from farther away. * A shooter whois fully inside a vehicle is less able to surprise the occupants andless able to hide from them thanis an outside shooter, even one who reaches in. An inside shooter puts himself in reach of the 20 occupants more than an outside shooter. The inside shooter is committing an act of a different character than that committed by an outside shooter. Accordingly, someone outside a vehicle shooting at or in close proximity to that vehicle has a similar unfair advantage as someone who commits lying- in-wait murder. In bothsituations, the attacker can take advantageofthe elementof surprise to overcomethe vulnerable victim whois essentially trapped. . Asstated above, this Court has found that section 246 proscribes an inherently dangerous felony under the second degree felony-murderrule because the crime “involves a high probability that death will result and therefore is an inherently dangerous felony under the governingprinciples.” (People v. Hansen, supra, 9 Cal.4th at p. 309.) In Ramirez, this Court again recognized, “the high probability ofhuman death or personal injury” when someoneviolates section 246. (People v. Ramirez, supra, 45 Cal.4th atp. 990.) It follows that the goalofthe statute is to protect people, not a vehicle or structure, and this goal is accomplished whetheror not the firearm is inside or outside of the vehicle or structure. As a matter oflinguistics, the word “at” has several meanings. AS relevant here, “at” is defined as “a function word usedto indicate that whichis the goal of an action or that toward which an action or motionis directed.” (Webster’s 3d New Internat. Dictionary (1981) p. 136.) The primary concept of the word “at” is “nearness or proximity,”andit is often used as “the equivalent of near or about.” (See Jordan v. Board ofSup ’rs of Tulare County (1950) 99 Cal.App.2d 356, 360.) In Georgia, “[o]ne who, while inside of an occupied dwelling, shoots a pistol at a floor thereof, is guilty of shooting “at” or “into” such dwelling.” (English v. State (1912) 74 S.E. 286, 286.) In Kentucky,the word “at,” as usedin a statute making it a crime to shoot at another person, required the shot to be “aimed, 21 pointed,or directed towards” that person. (Durham v. Commonwealth (1930) 31 S.W.2d 603, 604.) Here, for purposesof section 246, discharging a firearm “at” an occupied vehicle is not limited to those actions where the firearm was outside the vehicle. If the shooter is standing outside of the vehicle, _ including standingright nextto it with the firearm inside the vehicle, he is still shooting toward orin the direction of the vehicle. Althoughthe | firearm is inside of the vehicle, the goal of the shooter’s action is the same as if he was three feet from the vehicle. Asstated above,prior decisions from the Court of Appeal haverelied on this broad definition of “at” when interpreting section 246. Moreover, the rationale from the Court of Appeal cases demonstrates that section 246 is violated when the shooter’s body is outside the vehicle but the firearm (and/or his hand) is inside the vehicle when the gun discharges. The essenceofsection 246 is the endangermentofpeople in or around a structure or vehicle by one whoshoots “at” the structure or vehicle. From Stepney, we learned that the shooter cannot be inside the structure to be shooting “at”it. However,as set forth above, several Court of Appeal cases demonstrate that the statute covers those situations where the shooter discharges a firearm in such close proximity to the structure or vehicle that it is likely one or more bullets will hit the object or personsin or aroundit. For example, in People v. Chavira, supra, 3 Cal.App.3d 988, the Court of Appealaffirmed a conviction under section 246 when the defendant claimed he was shootingat the people standing by the dwelling, and not shooting at the dwelling itself. (/d. at p. 992.) Because the defendant was aware ofthe probability that some shots would hit the building and possibly injury the inhabitants, that was sufficient under the statute. (Id. at p. 993.) 22 Similarly here, even if the firearm wasinside the vehicle when appellant dischargedit, there was someprobability the bullet would hit the vehicle, and an even stronger likelihood it wouldinjure, or as it did here kill, a vehicle occupant. The fact that the firearm was inside the vehicle did not make appellant any less outside the vehicle than a shooter who was standing three feet away. Moreover,as the Jischke court held, becausesection 246is a general intent crime, the shooter need not intend to strike the targeted structure. (People v. Jischke, supra, 51 Cal.App.4th at p. 556.) The Overman court followed this reasoning when it found that section 246 was “not limited to shooting directly at an inhabited or occupiedtarget. . . it proscribes shooting either directly at or in close proximity to an inhabited or occupied target.” (People v. Overman, supra, 126 Cal.App.4th at pp. 1355-1356.) The Jones court extendedthis rationale whenit heldthat, “the prohibition against discharging a firearm ‘at’ the structureslisted in section 246 must include a prohibition against discharging a firearm ‘into’ those same structures.” (People v. Jones, supra, 187 Cal.App.4th at p. 274.) All of these cases focused on the possible dangerto the inhabitants of the structures or vehicle. Basedontherationale of these Court of Appeal cases, this Court should hold that a defendant can be convicted of discharginga firearm at an occupied motor vehicle in violation of section 246ifhe was outside the vehicle when he discharged the firearm but the firearm itself was inside the vehicle. The Legislature’s intent in enacting section 246 wasto protect the people sitting in the vehicles from shooters outside the vehicle. This goalis met even if the firearm is inside a vehicle. As the Jones court aptly said, “(t}here is simply no reasonablejustification” to distinguish between the situation where a person puts his handorthe firearm inside the vehicle and then dischargesit, or stands in the same position and discharges the firearm 23 without placing his handorthe firearm inside the vehicle. (People v. Jones, supra, 187 Cal.App.4th at p. 274.) “In both situations, the occupantofthe © vehicle is particularly vulnerable, in that the victim has minimal opportunities to escape or otherwise protect himself from the bullets.” (Ibid.) In addition, the Court of Appeal’s interpretation of section 246 would result in a gratuitous windfall to defendants. Based on the court’s interpretation ofthe statute, a defendant who barely penetrates the inside of a vehicle with the firearm would notbe guilty. Yet, given the reality of such shootings, it may be impossible for the prosecution to prove this was not the case. For example,there is often not an eyewitness who hadthe vantage point to determine whetherthe firearm brokethe plane of the vehicle. Even if an eyewitnessis available, other problems ofproof exist such as the witness’s recollection of the location of the firearm. In this case, the exact location of the firearm was not definitely established. Estrada, the only surviving eyewitness to the shooting,did not testify that the firearm was inside the truck. The photographs from the police reenactment ofthe shooting placed the firearm 27 inches from the victim’s face. This measurement wasbased solely on the minimum distance the firearm could have been without leaving sootorstippling; there was no evidence defendant’s hand wasactually inside the vehicle. Lastly, the rule of lenity does not apply here because thestatute is not susceptible to two reasonableinterpretations. (People v. Morrison, supra, 191 Cal.App.4th at p. 1556; People v. Bamberg (2009) 175 Cal.App.4th 618, 629.) Underthat doctrine, “courts must resolve doubts as to the meaning ofa statute in a criminal defendant’s favor.” (People v. Avery (2002) 27 Cal.4th 49, 57.) However, the rule “does not automatically grant | a defendant ‘the benefit of the most restrictive interpretation given any 24 statute by any court’ whenthereis a split of authority.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023.) Asthis Court explained in People v. Avery, supra, 27 Cal.4th at p. 57, “[t}]wo separate strands of. . . guidelines coexist” with respect to resolving competing statutory interpretations. “On the one hand, we have repeatedly stated that when a statute defining a crime or punishment is susceptible of two reasonableinterpretations,the appellate court should ordinarily adopt that interpretation more favorable to the defendant. [Citations.] ... On the other hand, section 4 provides: ‘The rule of the commonlaw,that penal statutes are to bestrictly construed, has no application to this Code. All of its provisions are to be construed accordingto the fair import oftheir terms, with a view to effect its objects and to promote justice.’ Appellate courts have often invoked section 4 as a reason notto interpret a statute strictly in favor of a criminal defendant. [Citations.]” (dd. at p. 58.) This Court reconciled the two lines of authority by explaining that only in cases oftrue interpretive deadlock doesthe rule of lenity apply. Thatis, ““[t]he rule [of lenity] applies only if the court can do no more than guess whatthelegislative body intended; there must be an egregious 3299 ambiguity and uncertainty to justify invoking the rule.”” (Jbid., quoting 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, eee § 24, p. 53, italics added.) The principle is inapplicable “‘unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolutionofthe statute’s ambiguities in a convincing manneris impracticable.’” (Avery, supra, at p. 58.) “[A]n appellate court should not strain to interpret a penal statute in defendant’s favorif it can fairly discern a contrary legislative intent.” ([bid.) . Here, becausethe legislative intent of section 246is clear, the rule of lenity is inapplicable. (See, e.g., Moskal v. United States (1990) 498 USS. 103, 108 [111 S.Ct. 461, 112 L.Ed.2d 449].) The persuasive reasoning of 25 the overwhelming weight of authority broadly defining the phrase “at” dispels any claim that the twointerpretationsofthis phrase are in “relative equipoise.” The Court of Appeal creates an ambiguity where noneexists, and invokestherule oflenity in its decision. This interpretation of section 246 should be rejected. Based on the “objects to be achieved,the evils to be remedied, and legislative history” (People v. Ramirez, supra, 45 Cal.4th at p. 987), “at” as used in Penal Code section 246 includes more than shooting directly at the object. It also includes shooting in such close proximity to the object thatit is likely one or morebullets will hit the object or persons in or aroundit. Therefore, a defendant can be convicted of discharging a firearm at an occupied motorvehicle under section 246 if he was outside the vehicle at the time he discharged the firearm, but the firearm was inside the vehicle. II /// HI 26 CONCLUSION For the foregoing reasons, respondentrespectfully requests that this Court reverse the judgment of the Court of Appeal andfindthat a person discharging a firearm while standing outside a motor vehicle, but holding the firearm inside the vehicle, is guilty of discharging a firearm at an occupied motorvehicle under Penal Code section 246. Dated: July 11,2011 CMLB:Ib $D2011701346 70482539.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE | Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General CHRISTINE LEVINGSTON BERGMAN Deputy Attorney General Attorneysfor Respondent 27 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S OPENING BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 8,541 words. Dated: July 11, 2011 KAMALA D. HARRIS Attorney General of California (A fA B— CHRISTINE LEVINGSTON BERGMAN Deputy Attorney General Attorneysfor Respondent DECLARATIONOF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: The People v. Martin Manzo No.: $191400 I declare: Iam employed i n the Office of the Attorney General, which is the office of a member ofthe California State Bar, at which member'sdirection this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney Generalis deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On July 12, 2011, I served the attached RESPONDENT’S OPENING BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope with postage thereonfully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Arthur Martin Clerk of the Court — For Delivery to: Attorney at Law , The Honorable Timothy R. Walsh P.O. Box 5084 San Diego County Superior Court Klamath Falls, OR 97601 500 Third Avenue [Attorney for Appellant Manzo - 2 Copies] Chula Vista CA 91910-5694 The Honorable Bonnie M. Dumanis Mr. Stephen M.Kelly, Clerk District Attorney — Attn: Appeals Fourth Appellate District, Div. One San Diego County D.A.'s Office California Court of Appeal 330 West Broadway, Suite 1320 750 B Street, Suite 300 San Diego, CA 92101 San Diego, CA 92101 Additionally, I electronically served a copy of the above document from Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on July 12, 2011,to Appellate Defenders, Inc.at its electronic address: eservice-criminal@adi-sandiego.com. I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on July 12, 2011, at San Diego, California. Loreen Blume Kotece bere Declarant Signature omy $D2011701346 70483461.doc