Opinion
NOT TO BE PUBLISHED
Super. Ct. No. T05/0268J
BUTZ , J.
Following a contested jurisdictional hearing, the juvenile court found that appellant Tyler D., a minor, committed the crime of discharging a firearm in a grossly negligent manner. (Pen. Code, § 246.3.) The court continued him as a ward of the court and placed him on probation under certain terms and conditions, including 30 days in juvenile hall.
Undesignated statutory references are to the Penal Code.
The minor appeals, contending the evidence is insufficient to support the court’s finding that he discharged a firearm in a grossly negligent manner. We shall affirm.
FACTUAL BACKGROUND
On April 24, 2007, the minor and his friend were out “four wheeling” in a remote area of Nevada County when they came across four adults who were shooting at an abandoned car. These individuals ranged in age between 20 and 29. The minor asked them whether he could take a turn shooting and they allowed him to do so. The firings were videotaped on the minor’s cell phone from a distance of 15 to 20 feet away.
The prosecution’s case consisted exclusively of the testimony of Truckee Police Officer William Berry and Nevada County Sheriff’s Deputy Ronald Smith, and their descriptions of what they observed in the video recordings. The 10- to 15-second video clips, which the juvenile court judge also viewed, show the minor on the hood of the car with a small-gauge shotgun. Two individuals shown in the video were walking around the front end of the abandoned car, 15 to 20 feet behind the minor as he fired each round. Another person in the background is parking a vehicle. In one of the video clips, the minor is seen shooting three rounds into the hood and windshield of the abandoned car, holding the gun at shoulder level. Another video clip shows the minor firing two rounds with the shotgun extended above his head. During one sequence, the minor is shown jumping up and down on the hood with the shotgun in his hands. Officer Berry and Deputy Smith testified that the manner in which the minor was firing the shotgun was unsafe not only for himself, but for those around him.
DISCUSSION
The minor contends the evidence is insufficient to support the juvenile court’s finding that he violated section 246.3 because, under the facts presented, no reasonable trier of fact could conclude that he was grossly negligent.
We are guided by well-established principles. “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Section 246.3, subdivision (a) provides: “Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense . . . .” Conviction of this crime requires proof that the defendant (1) intentionally discharged a firearm; (2) that he did so in a grossly negligent manner; and (3) there was a foreseeable risk of injury or death to a person. (See People v. Alonzo (1993) 13 Cal.App.4th 535, 538 (Alonzo).)
Curiously, Alonzo purports to identify “unlawfully” discharging a firearm as a separate element of the crime. However, that term nowhere appears in the statute. We do not consider unlawful discharge as an indispensable element to a conviction of section 246.3. Rather, as the jury instructions applicable to the crime indicate, the lawfulness of the defendant’s conduct only becomes an issue where a claim of self-defense or defense of others is raised (see Use Notes to CALJIC No. 9.03.3 (April 2006 ed.) p. 492 and Bench Notes to CALCRIM No. 970 (June 2007 rev.) (April 2008 ed.) p. 749), a situation not present here.
The minor acknowledges that he negligently and intentionally discharged a firearm, but maintains the evidence was insufficient to show more than simple negligence. The minor points out that he fired into a solid object, maintained a degree of control over the weapon, demonstrated awareness of others being in the line of fire, and discharged the shotgun in a remote rural area. These facts, he maintains, fall short of demonstrating “reckless abandon or disregard for human life.”
“Gross negligence, as a basis for criminal liability, requires a showing that the defendant’s act was ‘“such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.”’” (Alonzo, supra, 13 Cal.App.4th at pp. 539-540.)
As Officer Berry and Deputy Smith testified, the minor by his actions, placed himself as well as others in peril. The shotgun used by the minor had a fair amount of “kick” after discharge. Smith testified that the safe shooting position is to have the butt of the shotgun abutting the shooter’s shoulder. However, on at least two occasions, the minor was seen discharging a round with the gun extended over his head. Smith further stated that the unsafe shooting position together with the fact that the shotgun had a fair amount of “kick” and the minor was standing on a non-level surface (the hood of the car) created a very unsafe situation. The danger was made exponentially worse by the minor jumping up and down on the hood, creating the potential for him to slip, fall, and discharge a round.
The fact that the gun was discharged in a remote area is not dispositive. It is true that “section 246.3 by its terms presumes that there are reasonable grounds to suspect that people will be endangered. If there are isolated places in this populous state where the willful discharge of a firearm posed no reasonably foreseeable threat to human life, then that act in those places would not violate section 246.3.” (People v. Clem (2000) 78 Cal.App.4th 346, 352.)
Such is not the case here. Although the area was remote, it was not free from the “reasonably foreseeable threat to human life.” (Clem, supra, 78 Cal.App.4th at p. 352.) Besides the minor, there were at least four other individuals in harm’s way. The minor was firing a shotgun 15 to 20 feet away from the person who videotaped him and 15 to 20 feet away from two people walking behind him. Another person was parking a car nearby.
The minor fired into the hood and windshield of the car at a close distance, only inches or feet from the point of discharge. Thus, as the juvenile court judge stated, “[t]he presence of a ricochet here was very real.” Deputy Smith testified that when firing into a metal object, every firearm projectile, even shotgun pellets, can ricochet. Given their relative proximity, several individuals were potential victims of a ricocheted bullet gone awry, not to mention the danger to the minor himself.
We conclude the minor’s conduct in firing the gun in an unsafe manner, recklessly jumping up and down on the car’s hood, and discharging numerous rounds in the vicinity of other persons, constituted such a departure from what would be the conduct of an ordinarily prudent person as to be “‘“incompatible with a proper regard for human life.”’” (Alonzo, supra, 13 Cal.App.4th at p. 540.) The juvenile court’s finding of gross negligence is supported by substantial evidence.
DISPOSITION
The finding and order of the juvenile court are affirmed.
We concur: NICHOLSON , Acting P. J., CANTIL-SAKAUYE , J.