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Name: People v. Overman
Case #: E033784
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 02/17/2005
Subsequent History: Revw. den. 6/15/05

Appellant was charged with attempted murder, assault with a firearm, and discharging a firearm at an occupied building. The jury found him not guilty of attempted murder, but convicted him of assault and also of discharging a firearm. On appeal, appellant contended that the trial court erroneously instructed the jury on the intent element of discharging a firearm at an occupied building, and erroneously refused to instruct the jury on the lesser included offense of grossly negligent discharge of a firearm. The appellate court found that the jury was properly instructed on the intent element. The jury asked if shooting “at” a building meant that the building had to be the target. They were instructed that if they concluded that the defendant was aware of the probability that some of the shots would hit the building, that was sufficient to prove intent. The trial court’s additional instruction was proper. The statute is not limited to shooting directly at a building, but also shooting either directly at or in close proximity to an occupied target under circumstances showing a conscious disregard for the probability that the bullets will hit it. However, the trial court erroneously refused to instruct the jury on the lesser included offense. The expiration of the statute of limitations on the lesser included offense was an improper ground to refuse the instruction, because appellant was willing to waive the limitations period defense. Section 246.3 (grossly negligent discharge of a firearm) is a necessarily included offense to section 246, and substantial evidence showed that the lesser included offense but not the greater was committed. The instructional error was not harmless because it was reasonably probable that the jury would have convicted appellant of the lesser included offense.