People v. Alonzo, No. B065226
| Decision Date | 01 February 1993 |
| Docket Number | No. B065226 |
| Citation | 16 Cal.Rptr.2d 656,13 Cal.App.4th 535 |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Philip Rudolfo ALONZO, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
Ira Reiner, Dist. Atty., Maurice H. Oppenheim and Wendy C. Forward, Deputy District Attorneys, for plaintiff and appellant.
Nasatir & Hirsch, Michael D. Nasatir and Vicki I. Podberesky, Santa Monica, for defendant and respondent.
Respondent Philip Rudolfo Alonzo was charged with having willfully and unlawfully discharged a firearm in a grossly negligent manner which could result in injury or death to a person in violation of Penal Code section 246.3 after he shot a gun into the air in a commercial area of the City of Montebello at 2 a.m. on December 9, 1990.
After a brief preliminary hearing, the magistrate denied respondent's motion to set aside the charge. Upon review of the transcript of that hearing, the superior court granted the motion on the ground that the preliminary hearing evidence did not show gross negligence or evidence that the shooting could have harmed or injured a person. 1 For reasons explained in this opinion, we conclude that the magistrate's belief that respondent violated section 246.3 was reasonable. We therefore reverse the superior court's order setting the charge aside.
The only witness called by the prosecution at respondent's preliminary hearing was Montebello Police Officer Jeffrey Hanes. He testified that at the time of the incident he was off-duty, sitting in his personal vehicle in a parking lot in a commercial area where he had just purchased a soft drink and something to eat. He looked up when he heard a gunshot and saw respondent stepping off the curb in front of a 7-Eleven store. Respondent's right hand was extended above his head. In it he held a Beretta 92-F which was pointed straight up. Respondent shot two rounds into the air and said loudly, " 'I hate it when they don't believe me.' " Officer Hanes did not see anyone who appeared to be menacing respondent, and it did not appear to him that respondent was involved in any altercation.
Respondent walked to a parked vehicle, put the weapon under the right front passenger seat, and spoke to the driver. Two other people came out of a nearby store and got into the car. Officer Hanes followed the vehicle as it left the parking lot.
The area where this incident occurred was described as a "commercial business located on a four-lane thoroughfare street." The parking lot served several small stores, three of which were open for business at the time. Those three were the 7-Eleven store, an adjacent twenty-four hour donut shop and a Domino's Pizza about one hundred yards away. Officer Hanes described the area as "quite busy[.]" He testified that "[t]here was a lot of pedestrian traffic going in and out of the store making purchases, mainly alcohol because it's coming up on ... 2:00 o'clock on a weekend, getting kind of a rush at that time."
In an appeal from an order of the superior court granting a Penal Code section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate holding the defendant to answer. (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.) Our task is to determine whether the magistrate, acting as a person of ordinary prudence, could conscientiously entertain a reasonable suspicion that the defendant committed the crime charged. (People v. Stansbury (1968) 263 Cal.App.2d 499, 502, 69 Cal.Rptr. 827.) To that end, we draw every legitimate inference supported by the competent evidence and refrain from substituting our judgment for that of the magistrate. If the record demonstrates some showing of every element of the charge (People v. Love (1988) 203 Cal.App.3d 1505, 1507, 251 Cal.Rptr. 6), we must affirm the magistrate's ruling denying the motion to set the charge aside (People v. Prance (1991) 226 Cal.App.3d 1525, 1530, 277 Cal.Rptr. 567).
Penal Code section 246.3, enacted in 1988, provides: "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 the county jail not exceeding one year, or by imprisonment in the state prison."
As appellant points out, there is no case law interpreting Penal Code section 246.3. It appears from the language of the statute, however, that the prosecution was required to produce some evidence of the following elements in order to justify an order holding him to answer to the charge: (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.
Respondent's motion raised no issue as to the first two elements. At the close of the preliminary hearing, his counsel argued simply that the firing of a gun straight up into the air did not constitute grossly negligent conduct within the meaning of the statute. 2
Appellant contends it satisfied its burden because the evidence presented at the preliminary hearing demonstrated that respondent acted with an " 'I don't care what happens' " state of mind which constitutes conscious indifference to the consequence of his act or, in other words, gross negligence. Respondent counters that the manner in which he discharged the firearm does not rise to the level of gross negligence. Respondent claims that the magistrate's conclusion to the contrary rested upon speculation that " 'what goes up must come down[.]' "
Our review of the legislative history of Penal Code section 246.3 reveals that this statute was intended to deter the discharge of firearms on holidays such as New Year's and the Fourth of July (Sen.Rules Com. on Assem.Bill No. 3066, 3d reading (Aug. 11, 1988)), thereby supplementing existing law relating to criminal liability for the discharge of a firearm. 3
Before it was enacted, the proposed legislation was amended several times to refine the circumstances under which criminal liability attached. (Legis.Counsel's Digest, Assem.Bill No. 3066 (1987-88 Reg.Sess.).) The two final amendments added the "grossly negligent manner" language and the modifying phrase "which...
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