People v. Jischke

Opinion

DOSSEE, J.

Defendant fired a shot into the floor of his apartment and, hence, into the apartment below, striking an occupant of that lower dwelling. He was convicted in a jury trial of assault with a firearm and discharging a firearm at an inhabited building. The jury also found that defendant had personally used a firearm in the commission of the assault, but the jury found that defendant did not intentionally inflict great bodily injury upon the victim.

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(Before the trial began, defendant also pled guilty to being a felon in possession of a gun.) On appeal, defendant raises several challenges to the instructions given to the jury. We affirm the judgment.

Facts

Defendant, his girlfriend, and their two children lived at 241 Randolph Street in Napa. In the apartment below, at 243 Randolph Street, lived Betty Fry and her teenaged son, Joe Ortiz. Relations between the neighbors were cordial; defendant had visited Betty Fry’s apartment.

On the evening of February 11, 1994, 14-year-old Timothy Kennedy was visiting his friend, Joe Ortiz, and planned to spend the night. About 11:30

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p.m., as the two boys were planning to go to bed, they heard the sounds of someone vacuuming in defendant’s apartment above.

Tim Kennedy was holding his aluminum baseball bat, and he used it to tap two or three times in rapid succession on the ceiling. He knew from previous visits to the apartment that this signal was used to alert the upstairs apartment dwellers they were making too much noise.

A few seconds after Tim Kennedy tapped his bat, the vacuuming stopped. But then the vacuuming soon resumed. Tim started to tap the ceiling again, but Betty Fry told him to let the people upstairs finish their vacuuming. (Joe Ortiz, however, thought Tim did tap the ceiling again.) Within moments the vacuuming stopped a second time and then there was a popping sound. Tim then discovered he had been shot.

Betty Fry called 911, and Napa police officers responded. After getting the preliminary story from Betty Fry and the two boys, Officer Troendly headed to the upstairs apartment, but then he saw defendant leaving the building on a bicycle. He detained him for questioning. Defendant initially denied owning or firing any weapon that night. He also denied hearing a shot. A few minutes later, however, as other officers were on their way upstairs, defendant admitted owning a gun. He then told Officer Troendly that he had been cleaning his gun in the bedroom and it went off when he was “dry firing” it, that is, pulling the trigger of what he thought was an empty gun.