In re D.P. CA3

Filed 8/7/24 In re D.P. CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin) ----

In re D.P., a Person Coming Under the Juvenile Court C099474 Law.

THE PEOPLE, (Super. Ct. No. JJCJVDE20230000474) Plaintiff and Respondent,

v.

D.P.,

Defendant and Appellant.

At the jurisdictional hearing, the juvenile court found true that the minor, D.P., assaulted the victim with a semiautomatic firearm, shot at an occupied vehicle, discharged a firearm in a grossly negligent manner, and possessed a firearm and ammunition. On appeal, the minor argues, and the People concede, the offense of discharging a firearm in a grossly negligent manner is a lesser included offense of shooting at an occupied vehicle and the former true finding should be reversed. We agree with the parties and order this true finding be reversed. He also argues substantial evidence does not support the juvenile court’s finding that he used a semiautomatic firearm. We agree and, as a result, order the true finding of

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assault with a semiautomatic weapon be modified to the lesser included offense of assault with a firearm. The matter is remanded to the juvenile court for a dispositional hearing to recalculate the maximum term of confinement. I. BACKGROUND The People filed an amended petition under Welfare and Institutions Code section 602 alleging seven counts against the minor: attempted murder (Pen. Code,1 §§ 664/187, subd. (a), count 1); assault with a semiautomatic firearm (§ 245, subd. (b), count 2); shooting at an occupied vehicle (§ 246, count 3); discharging a firearm in a grossly negligent manner (§ 246.3, subd. (a), count 4); possession of a firearm by a minor (§ 29610, count 5); possession of ammunition by a minor (§ 29650, count 6); and criminal street gang activity (§ 186.22, subd. (a), count 7). The petition alleged additional enhancements that are not at issue here. Upon motion of the prosecutor, the juvenile court dismissed the criminal street gang activity count. At the jurisdictional hearing, two women testified they were in a car traveling down Elm Street when they heard a single gunshot. Neither the passenger nor the driver saw the shooter. The passenger felt an immediate pain and said she thought she had been shot. The driver pulled over and looked for a gunshot wound but could not find one. She drove on only to pull over a second time to look for a wound but still could not find one. The driver took the passenger to the hospital where the driver discovered a bullet hole in the passenger’s back. When the driver went to her car, she further discovered a single bullet hole through the trunk of the car. A witness to the shooting testified he heard “five to ten -- five or six” gunshots. He went to the door and saw the minor shoot about five shots from a gun. When asked, he said the shots came in a rapid succession that sounded like “[b]oom, boom, boom” as opposed to a more intermittent pattern. Those were the only shots he heard that night.