People v. Chavira

California Court of Appeal Jan 28, 1970 No. Crim. 16377Published

Before: Kingsley

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Holding. The court held that a defendant who requests an instruction on a lesser offense cannot challenge the conviction on that charge, and that firing shots at persons near a dwelling with reckless disregard for the consequences satisfies the intent requirement for discharging a firearm at an inhabited dwelling. The court also ordered a clerical correction to the judgment to reflect the jury's actual verdict.

Issues

Whether a defendant may be convicted of a lesser offense not charged in the information when the defendant requested the instruction for that offense.
Whether the evidence supported a conviction for discharging a firearm at an inhabited dwelling under Penal Code section 246.
Whether the trial court's clerical error in the commitment order regarding the specific code section violated requires modification.

Disposition. affirmed as modified

Quotations verified verbatim against the opinion

“Whether or not defendant was originally aware that he might be in danger of conviction of a violation of section 417, he invited that very danger when he requested an instruction on that section.”

“An act done with a reckless disregard of probable consequences is an act done with “intent” to cause such result within the meaning of the words used in the instruction.”

Opinion

KINGSLEY, J.

Defendant was charged in three counts, as follows: count I, assault on Rafael Estrada, with a deadly weapon with intent to kill, in violation of section 217 of the Penal Code; count II, assault on Guillermo Camacho, Jr., with a deadly weapon with intent to kill, in violation of the same section; count III, maliciously discharging firearms at the dwelling inhabited and occupied by Camacho, in violation of section 246 of the Penal Code. The information was later amended to charge that defendant was armed with a rifle and a shotgun at the time of commission of all three offenses. After a jury trial, he was found guilty, under counts I and II, of violations of section 417 of the Penal Code (displaying a firearm in a rude and boisterous manner) and guilty of count III. Defendant was ordered Committed to the Youth Authority. He has appealed; we affirm the judgment, with a modification hereinafter indicated.

[991]

At about 11 p.m., on May 10, 1968, defendant, accompanied by others, drove up to a car in which Camacho, Frank Duarte, and several other young men were riding, and made threats against the life of Duarte. At about 1 a.m., on May 11, 1968, Estrada, Camacho, Duarte, and other young men were congregated near Camacho’s home, when a car containing defendant and four other persons drove up, defendant leaned out of the car and fired a shotgun, wounding Estrada. Defendant drove a few feet further, he and a companion alighted, and fired numerous shots at a group of young men in the driveway of Camacho’s home; some shotgun pellets and gunshots hit the house.

Although defendant offered an alibi, and denied participation in the shooting, the jury obviously disbelieved him. The identification testimony for the prosecution, if believed, supported a finding that he either fired, or aided in the firing, of the shots involved in all three counts.

On this appeal, counsel argues: (1) that defendant was improperly convicted, under counts I and II, of violations of section 417, since that offense is not a necessarily included offense within section 217; (2) that the instructions on included offenses as to count III were inaccurate and confusing; and (3) that the evidence does not support a finding of guilt on count III. We reject all three contentions.

People v. Chavira

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KINGSLEY, J.

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