People v. White

• Decision Date: 25 March 1992
• Docket Number: Nos. F014112,F014375,s. F014112
• Citation: 6 Cal.Rptr.2d 259,4 Cal.App.4th 1299
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. David Alman WHITE, et al., Defendants and Appellants.

Page 259

6 Cal.Rptr.2d 259

4 Cal.App.4th 1299

The PEOPLE, Plaintiff and Respondent, v. David Alman WHITE, et al., Defendants and Appellants.

Nos. F014112, F014375.

Court of Appeal, Fifth District, California.

March 25, 1992.

Certified for Partial Publication ^*

Review Denied June 10, 1992.

[4 Cal.App.4th 1300] Gregory Marshall, James E. McCready, Linda Buchser, San Francisco, for defendants and appellants.

[4 Cal.App.4th 1301] Daniel E. Lundgren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

BUCKLEY, Associate Justice.

Following trial on an information alleging 18 counts of various offenses, appellants David Alman White and Tommy Carl Naus were convicted of a conspiracy to sell methamphetamine. (Pen.Code, § 182; Health & Saf. Code, § 11379.) ¹

In the published portion of this opinion we hold that a conviction of Penal Code section 246 (discharging a firearm at an inhabited dwelling house) is a crime of moral turpitude as defined in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111 and therefore admissible for purposes of impeachment.

We will affirm.

STATEMENT OF FACTS ^**

DISCUSSION

I.-II. ^***

III.

Is Shooting Into an Inhabited Dwelling a Crime of Moral Turpitude?

In a case of first impression, we are asked to decide whether shooting into an inhabited dwelling (Pen.Code, § 246) is a crime of moral turpitude within the meaning of People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.

At trial, the prosecution was allowed to impeach White with his 1978 conviction of Penal Code section 246. ⁵ White contends the trial court erred in its assessment of Penal Code section 246 as a crime of moral turpitude.

This court summarized the Castro rule in People v. Mansfield (1988) 200 Cal.App.3d 82, 87, 245 Cal.Rptr. 800:

"Pursuant to People v. Castro, supra, 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111], and subject to the trial court's discretion under Evidence Code section 352 only prior felony convictions that necessarily involve moral turpitude may be used to impeach a witness in a criminal proceeding. [Citation.] 'Moral turpitude' means a general 'readiness to do evil' [citation], i.e., 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' [Citations.] Castro makes no attempt to list or define those felonies which involve moral turpitude, but it makes clear that moral turpitude does not depend on dishonesty being an element of the felony. '[I]t is undeniable that a witness' moral depravity of any kind has some "tendency in reason" [citation] to shake one's confidence in his honesty.' "

One of the tenets of the Castro analysis is that in determining whether a crime is one of moral turpitude, a court must look only to the elements of the offense and decide whether its least adjudicated elements necessarily involve moral turpitude. Such limitation is made necessary by the confusion, surprise and prejudice to the defendant engendered by examination of underlying specific and often extraneous facts. (Cf. People v. Castro, supra, 38 Cal.3d at pp. 316-317, 211 Cal.Rptr. 719, 696 P.2d 111.)

Seizing upon the phrase "least adjudicated elements," White makes a disingenuous argument. He contends that since a person could be convicted of Penal Code section 246 by shooting at a building which was actually unoccupied at the time the shot was fired, the least adjudicated element would simply consist of maliciously shooting at an unoccupied building without the intent or likelihood of committing serious bodily injury upon anyone else. We reject his attempt to minimize by syllogism the magnitude of Penal Code section 246.

For purposes of Penal Code section 246, a building is considered "inhabited" if there are permanent residents thereof, even if it is temporarily unoccupied. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1018, 232 Cal.Rptr. 132, 728 P.2d 202.) Moreover, as pointed out in People v. Thomas (1988) 206 Cal.App.3d 689, 698, 254 Cal.Rptr. 15, the Supreme Court, in setting forth the " 'least adjudicated elements of the conviction necessarily involve[d]' " standard in Castro could not have meant that a prior conviction for purpose of impeachment cannot be used if there is any conceivable set of facts under which the offense could have been committed free of moral turpitude. All that Castro requires is that moral turpitude can reasonably be inferred from the elements of the offense alone without regard to the facts of the particular violation.

We note that Penal Code section 247 makes punishable as a misdemeanor the discharge of a firearm at an uninhabited dwelling house. From a reading of the penal consequences of sections 246 (felony) and 247 (misdemeanor), it is readily apparent that the Legislature has determined that shooting at an inhabited dwelling house is far more serious than if the house were uninhabited. There is no provision for a lesser range of punishment should the house be fortuitously unoccupied at the time if the discharge.

It is elementary, yet essential to this analysis, to note that inhabited is defined as "lived in." (Webster's New World Dict. (2d college ed. 1982) p. 724.) By definition then, inhabitants are generally in or around the premises. From this, we can readily perceive the inherent danger in one firing a weapon at an inhabited dwelling. Such an act is done with reckless disregard of probable consequences (someone being struck). (People v. Chavira (1970) 3 Cal.App.3d 988, 993, 83 Cal.Rptr. 851.)

Since Penal Code section 246 does not require a specific intent to accomplish an objective (e.g., injure, kill, frighten, etc.), White first argues, without citation, that Castro cannot be extended to apply to a conviction of section 246. He next argues that even if moral turpitude could be extended to a situation where there is some probability of injury, regardless of intent, even that probability is not among the least adjudicated elements of section 246.

He next makes the rather startling argument that if a person were killed as a result of a shot fired pursuant to section 246, "the most likely crime of which the shooter would be guilty is involuntary manslaughter--one of the crimes which has been held not to involve moral turpitude," citing People v. Solis (1985) 172 Cal.App.3d 877, 883, 218 Cal.Rptr. 469.

Addressing his last conclusion first, we disagree that the most likely crime resultant from a death caused by firing into an inhabited dwelling would be involuntary manslaughter.

We have already found that one who fires shots into an inhabited dwelling is doing so with a reckless disregard for the consequences. (People v. Chavira, supra, 3 Cal.App.3d at p. 993, 83 Cal.Rptr. 851). In People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279, it was held that one who does an " ' " 'act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with a conscious disregard for life' " ' " may be convicted of second degree murder. The Watson decision was significant because it extended the possibility of a second degree murder consequence to a person driving under the influence of alcohol under certain circumstances. The Supreme Court found malice (a necessary element of murder) implied from such a conscious disregard for others. (Id. at p. 298, 179 Cal.Rptr. 43, 637 P.2d 279.)

We conclude that under the principles set forth in Watson, a person who demonstrates such wanton disregard for the life of another by firing shots into an inhabited dwelling could be convicted of second degree murder should someone die as a result. Castro defines moral turpitude as a readiness to do evil. (38 Cal.3d at p. 314, 211 Cal.Rptr. 719, 696 P.2d 111.) A "second degree murder conviction certainly demonstrates a readiness to do evil, murder being the most evil of crimes." (People v. Littrel (1986) 185 Cal.App.3d 699, 702, 230 Cal.Rptr. 83.)

It has been held that possession of an illegal weapon is a crime of moral turpitude (People v. Garrett (1987) 195 Cal.App.3d 795, 799-800, 241 Cal.Rptr. 10) ⁶ and that possession of a firearm by a felon is a crime involving moral turpitude. (People v. Littrel, supra, 185 Cal.App.3d at p. 703, 230 Cal.Rptr. 83.) Possession of such weapons was determined by each court to involve a readiness to do evil. (Garrett, supra, 195 Cal.App.3d at p. 800, 241 Cal.Rptr. 10; Littrel, supra, 185 Cal.App.3d at p. 703, 230 Cal.Rptr. 83.)

It would be anomalous to hold here that the "evil" actually done (shooting at an inhabited dwelling) was not also a crime of moral turpitude.

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