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Name: People v. Licas
Case #: G034891
Court: CA Court of Appeal
District 4 DCA
Division: 4
Opinion Date: 11/29/2005
Subsequent History: Review Granted 3/1/06: S140032
Summary

Appellant was convicted of shooting from a vehicle in violation of Penal Code section 12034, and possession of a firearm by a felon in violation of section 12021, subdivision (a)(1). On appeal, he contended that the trial court erred by failing to instruct the jury that assault with a firearm (section 245(a)(2)) is a lesser included offense of shooting from a vehicle, and that substantial evidence did not support the finding that he shot the victim from inside a vehicle. The appellate court rejected the argument, holding that assault with a firearm is not a lesser included offense of shooting from a vehicle. The crime of shooting from a vehicle does not include the element that the shooter has the present ability to commit a violent injury on another person, which is a requirement of assault with a firearm. (The court specifically disagreed with In re Edward G. (2004) 124 Cal. App. 4th 962) which held to the contrary.) Further, there was substantial evidence that appellant fired the shots from inside the car because a witness testified that she saw him in the vehicle and saw the gun come outside the window.