Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 09F00672
ROBIE, J.
A jury found defendant Trevin Leepaul Spencer guilty of unlawful possession of a firearm and grossly negligent discharge of a firearm. Following the jury’s verdict, the trial court sustained an allegation against defendant of violation of probation. The trial court granted defendant formal felony probation conditioned on him serving 365 days in jail.
Defendant appeals, contending there was insufficient evidence that a firearm was discharged in a grossly negligent manner. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived with his mother and 14-year-old sister in a single-story duplex within a residential area. Defendant had his own bedroom with a window overlooking the backyard, which was covered in mud and dog feces and surrounded on all sides by an at least six-foot fence.
On the evening of January 24, 2009, defendant came home intoxicated and became involved in a conflict with his mother. She testified at trial, “he just was up and down. He was all crying one minute or hugging me and giving me kisses and hugs and saying oh, mom, I love you so much.” Defendant then talked to his mother about ultimate fighting matches, telling her he was going to win money from the matches to pay their bills. As “his mood altered from one thing to the next,” he became disappointed and thought his mother did not believe in him. She went outside to “let him get his head together a little bit,” but he followed her. A neighbor heard the “commotion” from defendant and his mother, and called 911. Eventually, defendant’s mother, along with his sister, walked four or five buildings down, to the home of another neighbor, Vannessa Bush, so that defendant could “cool down a little bit.” About 10 to 20 minutes later, six to eight gunshots sounded from the direction of defendant’s duplex, followed by a second round of six to seven more gunshots. Bush called 911 around that time.
In response, a helicopter and several deputies from the Sacramento County Sheriff’s Department surrounded the area. Just as two of the deputies were approaching, defendant fired 10 more gunshots from the rear of the duplex. After this round of gunshots, residents were evacuated from several neighboring homes, including the house directly south of defendant’s duplex. Defendant came out a short while later and was placed in handcuffs. With defendant secured, the deputies went into the duplex and conducted a “room-to-room search.” They found in defendant’s bed a semiautomatic rifle, capable of firing multiple rounds with one pull of the trigger and no reloading, which smelled like it had been fired recently.
The deputies also found in the bedroom an ammunition clip that was missing bullets and spent shell casings matching the rifle. Two of the shell casings were behind an entertainment center, which was up against the wall where the window was located. Although no one saw defendant fire the rifle that night, the location of the shell casings and the placement of the furniture was consistent with him firing over the entertainment center out the window.
Deputy Sheriff Lance Parker was one of the deputies who reported to defendant’s duplex that night. He testified at trial that given the relative size of the entertainment center and window, defendant could not have shot out the window safely, as he would have shot the rifle into the air holding it the correct way or shot the rifle into the ground holding it the incorrect way. He testified further that defendant would not have had control over the rifle or the direction of the bullets. Deputy Parker also explained that a person of short stature shooting out the window would have had even more difficulty shooting into the ground safely, and the record shows defendant was five feet four inches tall. The deputies searched defendant’s backyard but found no bullet holes there. In fact, no bullet holes were found anywhere that night, although the neighbors’ yards were not searched.
At trial, the prosecution presented the following evidence on gun safety. It is generally safe to point a gun down, but it depends on the circumstances whether discharging a gun into the ground is safe. For example, it would be safer to discharge a gun into a muddy backyard than into a courtroom floor. Also, a direct line of view is important in determining a safe location to shoot a gun, and one’s level of sobriety affects the ability to properly shoot a gun.
DISCUSSION
Defendant’s sole contention is the evidence was insufficient to support his conviction for grossly negligent discharge of a firearm. We disagree.
I
Standard Of Review
“When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 859.) Furthermore, “[a]n appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
II
Sufficient Evidence Supported The Conviction
For Negligent Discharge Of A Firearm
“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 and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.” (Pen. Code, § 246.3.) A violation of Penal Code section 246.3 breaks down into three elements: “(1) the defendant unlawfully discharged a firearm; (2) the defendant did so intentionally; (3) the defendant did so in a grossly negligent manner which could result in the injury or death of a person.” (People v. Alonzo (1993) 13 Cal.App.4th 535, 538.) On appeal, defendant challenges only the third element, limiting our inquiry to two questions: (1) was defendant grossly negligent; and (2) could defendant’s behavior have resulted in the injury or death of a person?
A
Gross Negligence
“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.”’ [Citation.]” (People v. Alonzo, supra, 13 Cal.App.4th at pp. 539-540.) Firing a gun in the air where there are several people in the near vicinity demonstrates a “disregard of human life” and constitutes gross negligence. (See id. at p. 540.) Even where there is no direct evidence as to the direction in which a gun was pointed and no bullet holes are found, “grossly negligent disregard of human life” is evidenced by a gun fired “in the general vicinity of several persons.” (People v. Overman (2005) 126 Cal.App.4th 1344, 1362-1363.)
The evidence here sufficiently demonstrated defendant’s “grossly negligent disregard of human life.” To begin with, defendant was intoxicated the night of the incident, which would have affected his ability to properly shoot the rifle. More importantly, the location of the shell casings, the size of the entertainment center and its placement against the wall, and defendant’s short stature are all evidence that defendant fired the rifle out the window in an unsafe manner. In doing so, defendant would have lacked control over both the rifle and the direction of the bullets. Based on this evidence, the jury could have reasonably inferred defendant shot the bullets into the air, near neighboring homes, most of which were occupied that night, including the house directly behind defendant’s duplex. The duplex was also surrounded by several deputies when he shot the final round of gunfire. A bullet could have struck any one of the neighbors or deputies in the vicinity.
Defendant emphasizes that no one saw how he fired the rifle and no bullet holes were found. Although relevant, these facts are not dispositive. Where the same evidence was lacking in Overman, the court concluded there was substantial evidence of gross negligence based solely on the fact that the defendant fired a rifle near several people. (People v. Overman, supra, 126 Cal.App.4th at pp. 1362-1363.) The same applies here. Accordingly, we conclude there was substantial circumstantial evidence upon which the jury could rely to find defendant shot the rifle in a grossly negligent manner.
B
Injury Or Death To A Person
The grossly negligent discharge of a firearm is a crime only if “under the circumstances, it actually had the potential for culminating in personal injury or death.” (People v. Alonzo, supra, 13 Cal.App.4th at p. 539.) Shooting a gun in the air has “the potential for culminating in personal injury or death” because the bullets could hit someone or cause responsive gunfire. (Id. at p. 540) It is “precisely the type of behavior that [Penal Code section 246.3] was intended to deter.” (Ibid.)
In enacting this statute, “the Legislature intended no requirement that an actual person be in proximity to the grossly negligent shooting. The risk element of [Penal Code] section 246.3 was included to ensure that the statute would not apply to hunting or target practice in remote locations, posing no foreseeable risk of human injury, based on abstract theories of criminal negligence. The risk element requires the likely presence of people in the area, not the actual presence of a specific person.” (People v. Ramirez (2009) 45 Cal.4th 980, 986-987.)
People v. Clem (2000) 78 Cal.App.4th 346, 352 describes when the statute would not apply: “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 [Penal Code] section 246.3.”
The jury could infer from the evidence defendant fired the rifle into the air when there were several neighbors and deputies nearby. On this basis alone, the risk element of Penal Code section 246.3 would be satisfied. (See People v. Overman, supra, 126 Cal.App.4th at p. 1363.) The likelihood of injury was greater, however, because defendant fired not just one, but 22 to 25 shots in the air. Firing multiple rounds of gunfire in the air with several people nearby certainly could have culminated in personal injury or death of a person.
Unlike hunting in a remote location or shooting a gun in target practice, defendant shot a rifle in a highly populated area without control over the rifle itself or the direction of the bullets. His behavior posed a foreseeable risk of injury and is of the type the statute was intended to deter.
For the reasons stated above, the conviction for grossly negligent discharge of a firearm was supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J. BUTZ, J.