Skip to content
Name: People v. Ramirez
Case #: S156775
Court: CA Supreme Court
District CalSup
Opinion Date: 02/26/2009

Gross negligent discharge of a firearm is a lesser included offense of willful discharge of a firearm at a building or vehicle. Resolving a split among Courts of Appeal, the Supreme Court held that a violation of Penal Code section 246.3, subdivision (a) (willful discharge of a firearm in a grossly negligent manner which could result in injury or death) is a lesser-included offense of Penal Code section 246 (maliciously and willfully discharging a firearm at an occupied building or vehicle). The only difference between the two is that section 246 proscribes discharging a firearm at specific targets that have an inherently high risk of injury or death; while section 246.3 prohibits discharging a firearm in any grossly negligent manner that presents a significant risk of injury or death, which is always encompassed in section 246. The Court rejected the Attorney General’s interpretation that section 246.3, subdivision (a) required “the actual presence of a person in harm’s way,” which section 246 does not; section 246.3, subdivision (a) was enacted to deter the practice of firing guns into the air for festive events, which is reckless and dangerous whether or not someone happens to be in harm’s way on that occasion. Both statutes proscribe the same acts with the same mens rea; the only differences are that the likelihood of injury and the targets of fire are stricter for section 246. Therefore, all of the elements of section 246.3, subdivision (a) are necessarily included in the more stringent requirements of section 246, and the former is an LIO of the latter.