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Name: People v. Ramirez
Case #: F050212
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/05/2007
Subsequent History: 12/12/07: rev. granted (S156775)

Penal Code section 246.3 (negligent discharge of a firearm) is not a lesser offense necessarily included in Penal Code section 246 (firing at an inhabited dwelling), disagreeing with People v. Overman (2005) 126 Cal.App.4th 1344. Using a shotgun, appellant engaged in a shoot-off with police officers from his apartment, during which neighboring apartments were struck by pellets from shotgun blasts. He argued that he could not be convicted of ten counts of negligent discharge plus three counts of firing at an inhabited dwelling because only ten spent shells were found in his apartment. (People v. Pearson (1986) 42 Cal.3d 351) [multiple convictions of greater and necessarily included lesser offenses are not permitted].) The appellate court ruled that under the requisite elements test, firing at an inhabited dwelling does not require any possibility of causing injury or death of a person as does negligent discharge of a firearm. (People v. Reed (2006) 38 Cal.4th 1224.) Only the “elements” test may be used in determining whether one offense is necessarily included in another for purposes of applying the Pearson rule against multiple convictions.