PEOPLE v. MANZO










Filed 1/31/11



CERTIFIED FOR PUBLICATION


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. MARTIN MANZO, Defendant and Appellant.

D055671 (Super. Ct. No. SCS212840)

STORY CONTINUE FROM PART I….

D
Given that the trial court erred by admitting Manzo's statements to police during his interview, we must determine whether the People have carried their burden to show beyond a reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v. California, supra, 386 U.S. at p. 24.) Sullivan v. Louisiana (1993) 508 U.S. 275 explained this standard of harmless error:
"Harmless error review looks, we have said, to the basis on which 'the jury actually rested its verdict.' [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Id. at p. 279.)

In the circumstances of this case in which evidence of Manzo's statements to police was erroneously admitted, that error can "be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Arizona v. Fulminante (1991) 499 U.S. 279, 308.) Alternatively stated, in reviewing the erroneous admission of Manzo's statements to police, we "simply review[] the remainder of the evidence against [Manzo] to determine whether the admission of [Manzo's statements] was harmless beyond a reasonable doubt." (Id. at p. 310.)
Based on our review of the record in this case, we conclude the erroneous admission of Manzo's statements to police was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) The evidence proving Manzo's guilt of the murder and attempted murder offenses was so overwhelming that we conclude beyond a reasonable doubt the erroneous admission of Manzo's statements did not contribute to the jury's verdict convicting him of those offenses.^[1] (Ibid.) Quantitatively assessing the evidence of Manzo's statements in the context of the other evidence, we conclude the erroneous admission of his statements was harmless beyond a reasonable doubt. (Arizona v. Fulminante, supra, 499 U.S. at p. 308.)
As the prosecutor argued in closing, Manzo's guilt of the charged murder and attempted murder offenses was proven beyond a reasonable doubt based on the extensive and detailed physical evidence in the case, the expert testimony explaining much of that physical evidence, and the percipient testimony of Estrada and other eyewitnesses, which was corroborated by the physical evidence. The evidence showing Manzo's guilt included his flight when stopped by police, the six bullets found in his pocket, the disassembled pistol and bloodstained cell phone in the lunch cooler found in the bed of his truck, the gun's slide release found on the driver's side floorboard, Valadez's blood found on Estrada's right side and clothing, gunshot residue found on Manzo's (but not Estrada's) hands, and the cell phone found containing 10 bindles of methamphetamine. Also, Estrada testified extensively regarding the details of the incident, stating that Manzo stood in the open driver's door of his truck, pointed the gun at Valadez and him, and fired the gun, striking Valadez. Campman, the forensic pathologist, testified the gun, when shot, was at least two feet from Valadez and could have been 27 inches from Valadez's cheek. He also testified regarding Valadez's atypical gunshot wound caused by a fragmented bullet and the bullet fragments found in Valadez's head.
Testimony regarding, and photographs of, the police reenactment (based on the physical evidence and Estrada's testimony) showed that a gun pointed by a person standing in the open driver's door of the truck was 27 inches away from the cheek of a person sitting in the right passenger's seat and leaning slightly forward. Dowell testified that gunshot residue was found on Manzo's hands, Estrada's face, the left waistband of Estrada's shorts, Valadez's right hand, and the dashboard and roof on the driver's side and passenger's side (but not the middle dashboard and roof). However, no gunshot residue was found on Estrada's hands. The gunshot residue evidence tended to corroborate Estrada's testimony describing how Manzo shot Valadez. Gannett testified regarding the blood spatter and bloodstains found in the truck and on Estrada and his clothing. That testimony tended to corroborate Estrada's testimony that he was sitting in the middle passenger's seat and Valadez was sitting in the right passenger's seat when Manzo shot Valadez.
Paul, the firearm expert, testified regarding the 7.625-millimeter gun found in Manzo's truck and that the use of 9-millimeter cartridges would cause it to misfire or the bullet to fracture. The irregular and mutilated feed lips of the gun's magazine could have been caused by use of 9-millimeter cartridges. He testified that the bullet base found lodged in the gun's barrel matched the bullet found in Valadez's head. The gun would misfire if a person attempted to fire the gun with the bullet base lodged in its barrel. Three of the six 9-millimeter bullets found in Manzo's pocket were compressed, which could have been caused by attempts to manually load them in the gun while the bullet base was lodged in its barrel. A mark on the primer of one of the bullets showed an attempt had been made to fire it. Paul's testimony corroborated Estrada's testimony regarding Manzo's initial misfiring of the gun, removal of the gun's magazine, manual loading of the gun, firing one bullet at Valadez, and subsequent misfiring at Estrada after attempting to manually load and/or adjust the gun.
The percipient testimony of Gallegos corroborated Estrada's testimony that Manzo drove the truck into the apartment complex, went inside his apartment, returned to his truck, and drove it to the back of the complex. She then heard a gunshot and saw Manzo jump in the truck and drive away after giving her a "frozen look." Morgan testified he saw Manzo drive into the apartment complex with two passengers, heard a popping sound, and then saw Manzo drive away with only one passenger. Parquet testified he saw two passengers in Manzo's truck, but later drove away with only one passenger, and saw a bloody body near the area from which Manzo departed. Dukes testified he heard a popping sound, looked toward the parking lot, and saw a Hispanic male with a shaved head holding a gun, standing outside the open driver's door of Manzo's truck. Therefore, the testimony of the prosecution's percipient witnesses generally corroborated Estrada's testimony regarding the incident.
Based on our review of the record, we conclude the jury actually rested its verdict on the evidence described above and the jury's verdict was surely unattributable to the trial court's erroneous admission of Manzo's statements to police. (Sullivan v. Louisiana, supra, 508 U.S. at p. 279.) As generally described above, Manzo's statements to police consisted primarily of denials of any involvement in, or any knowledge of, the shooting. Manzo said he picked up Estrada at a market in San Ysidro because Estrada asked for a ride and denied having any other passengers in his truck that day. After initially denying he drove back to Chula Vista after picking up Estrada in San Ysidro, Manzo later stated he might have gone back to his Chula Vista apartment to check on his girlfriend, but does not remember because he was drunk. He stated he did not know whether there was any blood in his truck because he was drinking. He denied owning or ever shooting a gun. He stated that neither he nor Estrada hurt anyone that day (other than police officers). He denying knowing he had six bullets in his pocket and denied they were his. He stated that when police stopped him, he was taking Estrada back to the market and ran because he did not want to get crushed in his truck and the officers were chasing him.
When Manzo's statements are considered with the overwhelming evidence discussed above proving his guilt of the murder and attempted murder offenses, the jury logically found his statements to police were not credible. However, the prosecution's case against him was not that of a credibility contest between Estrada's testimony and Manzo's statements to police. Rather, it was based on the extensive and detailed physical evidence, the testimony of expert witnesses, and the testimony of Estrada and other percipient witnesses (corroborated by the physical evidence and expert testimony). Although the prosecutor argued in closing that Manzo repeatedly lied to police and noted the relative credibility of Estrada in comparison to that of Manzo, the prosecution's case against Manzo (in particular, Estrada's credibility) did not rely on Manzo's statements to police and his lack of credibility. Furthermore, contrary to Manzo's assertion on appeal, Estrada's testimony that Manzo shot Valadez and attempted to shoot him was not inherently incredible based on inconsistencies in Estrada's versions of the incident or on the fact Estrada continued to ride in Manzo's truck for about four and one-half hours after Valadez was shot and after Manzo repeatedly attempted to shoot him. Rather, Estrada's testimony regarding Manzo's commission of the offenses was corroborated by the extensive physical evidence and expert testimony.
Quantitatively assessing the evidence of Manzo's statements in the context of the other evidence, we conclude the erroneous admission of his statements was harmless beyond a reasonable doubt. (Arizona v. Fulminante, supra, 499 U.S. at p. 308.) The evidence proving Manzo's guilt of the murder and attempted murder offenses was so overwhelming that we conclude beyond a reasonable doubt the erroneous admission of Manzo's statements did not contribute to the jury's verdict convicting him of those offenses. (Chapman v. California, supra, 386 U.S. at p. 24.) Therefore, the trial court's error in admitting those statements does not require reversal of his convictions of those offenses. (Ibid.)
II
Admission of Estrada's Prior Consistent Statements
Manzo contends the trial court erred by admitting into evidence Estrada's prior consistent statements.
A
Evidence Code section 1236 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 791." Evidence Code section 791 provides:
"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

"(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

"(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Italics added.)

Cross-examination of a witness by defense counsel regarding that witness's plea agreement may be deemed to be an implied charge that the witness had an improper motive to fabricate his or her trial testimony. (People v. Hillhouse (2002) 27 Cal.4th 469, 491; People v. Bunyard (1988) 45 Cal.3d 1189, 1209.) "[A] prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness's testimony." (People v. Noguera (1992) 4 Cal.4th 599, 629.) "That there may always have been present a motive to fabricate does not deprive a party of his right to show that another motive, suggested by the evidence, did not also affect his testimony." (People v. Ainsworth (1988) 45 Cal.3d 984, 1014.) In Hillhouse, the court rejected the defendant's argument that the witness "had a motive to minimize his role in the crime even before he made the prior consistent statements," explaining "[t]his is no doubt true, but defendant also implied at trial that the plea agreement provided an additional improper motive. A prior consistent statement logically bolsters a witness's credibility whenever it predates any motive to lie, not just when it predates all possible motives." (Hillhouse, at pp. 491-492; see also People v. Jones (2003) 30 Cal.4th 1084, 1106-1107 (Jones); People v. Andrews (1989) 49 Cal.3d 200, 210-211; People v. Hayes (1990) 52 Cal.3d 577, 609.) The focus is on the specific agreement or other inducement suggested by cross-examination as showing the witness had an improper motive. (Noguera, at p. 629; Jones, at p. 1107.) "The abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence." (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
B
During his opening statement, Manzo's counsel stated that Estrada was not credible and the evidence would show Estrada, not Manzo, was the shooter in this case. He stated Estrada was charged with murder and arraigned on that charge, and from the time of his initial statement to police on August 4, 2007, through the time of trial had a motive to "turn himself from a suspect into the victim." Manzo's counsel implied Estrada's statements to police were self-serving so that he would not face 25 years to life in prison and could, instead, go home on August 24 after three weeks in jail.
Before Estrada testified, Manzo filed a motion in limine to exclude evidence on Estrada's statements to police as prior consistent statements under Evidence Code section 791, subdivision (b). The trial court deferred ruling on the motion until after Estrada testified.
On direct examination by the prosecutor, Estrada testified regarding the incident substantially as described above. During cross-examination, Manzo's counsel asked Estrada whether he had received immunity "from the drugs in this case [e.g., drug possession offenses]." Estrada replied, "Yes." Estrada confirmed that his attorney explained to him that the immunity agreement provided he could not be prosecuted for offenses involving the methamphetamine in the case. Manzo's counsel also asked Estrada whether on August 3, 2007, he was arrested at the motel parking lot for murder in this case. Estrada confirmed he was arrested on that date. Manzo's counsel further asked whether Estrada had been booked into jail and later arraigned in court for murder in this case. Estrada confirmed that at his arraignment he was appointed an attorney who told him he was facing 25 years to life in prison for the murder charge. Manzo's counsel asked Estrada whether he "sat in the Chula Vista jail for the next three weeks" after his arrest and arraignment. Estrada confirmed that he had and knew he was facing prison. Estrada confirmed he did not like being in jail.
On conclusion of Estrada's cross-examination by Manzo's counsel, the trial court conducted a hearing outside the jury's presence to consider the prosecutor's motion under Evidence Code section 791, subdivision (b), for admission of video recordings of Estrada's prior consistent statements made during police interviews. Manzo's counsel objected to admission of Estrada's prior consistent statements, arguing Estrada had a motive to fabricate since the time of his arrest. After discussing the holding in Jones, the trial court stated:
"Without going into the case as created in Jones in great detail, I think here we have a similar situation. [¶] Here there was no express plea bargain or, quote/unquote, deal. But one might argue at the extreme end of any spectrum involving . . . the dismissal of the case, and that is the ultimate bargain or benefit for [a] defendant, and I think that's what constituted at least one major event here subsequent to his contact. In other words, 17 days after he was arrested, the case against him was dismissed, and today he was granted immunity at least as it pertains to part of the case. [¶] . . . [¶] . . . [Partial immunity] gives him another incentive potentially to understand that only part of the situation has been resolved. He still might have incentive.

"So while Estrada arguably had a motive to minimize or detectives know his own involvement and implicate Mr. Manzo from the outset, I find that [Jones] holds under similar circumstances such statements are admissible because of the second incentives that he had; namely, the deal. In other words, the fact the case was dismissed against him as well as the immunity he was granted today.

"Estrada's statement implicating Manzo was made prior to the People's decision not to prosecute and prior to . . . granting . . . immunity today as to partly the facts in the case, and I am going to allow it [to] be admitted."

Accordingly, the court granted the prosecutor's motion to admit Estrada's prior consistent statements.
Later during the trial, video recordings of two of Estrada's police interviews (on August 4, 2007, and August 7, 2007) were played for the jury, and at that time each juror was provided a transcript of those interviews.
After conclusion of the evidentiary portion of the trial but before closing arguments, the trial court informed the jury that the parties stipulated as follows: "The charge of murder against Mr. Jose Estrada was dismissed without prejudice. Without prejudice means the charge against Mr. Estrada can be refiled." In closing argument, Manzo's counsel argued the prosecution's case rose and fell on Estrada's credibility. He argued Estrada wanted to be a victim, rather than a suspect, in the murder and noted Estrada had been granted partial immunity regarding the drugs he possessed. Manzo's counsel further noted the murder charge against Estrada was dismissed without prejudice three weeks after his arrest and argued that if he did not testify the way the prosecutor wanted him to, he could be back in jail charged with murder.
C
Manzo asserts the trial court erred by admitting evidence of Estrada's prior consistent statements because Estrada had the same motive to lie since the time of his (Estrada's) arrest for murder (i.e., to avoid being charged with and convicted of murder). However, as discussed above, during Estrada's cross-examination, Manzo's counsel asked Estrada about two significant matters: (1) the immunity agreement he received from the prosecutor for any drug-related offenses in this case; and (2) his arrest for murder on August 3, 2007, and confinement in jail for the following three weeks. In so cross-examining Estrada, the trial court (and jury) could reasonably infer Manzo's counsel was making an "implied charge" or claim that Estrada's testimony at the trial was influenced by bias or other improper motive. The court could conclude that, by questioning Estrada regarding the partial immunity agreement he obtained from the prosecutor and his arrest and three-week confinement in jail, Manzo's counsel was attempting to show Estrada had an improper motive to lie and testify favorably to the prosecutor's case. Although, in cross-examining Estrada, Manzo's counsel did not expressly refer to Estrada's release from jail after that three-week period, the court (and the jury) could infer from the context of the questioning and Estrada's answers that he was, in fact, released from jail after three weeks. The court could reasonably conclude Manzo's counsel impliedly claimed Estrada had an improper motive to lie and testify favorably to the prosecutor's case based on his release from jail.^[2]
We conclude the trial court properly admitted Estrada's prior consistent statements pursuant to Evidence Code section 791, subdivision (b). Although this case, unlike Jones, did not involve a plea agreement that purportedly provided the witness with an improper motive to lie, we nevertheless agree with the trial court that the facts in Jones are sufficiently similar to this case to apply its reasoning in admitting Estrada's prior consistent statements. Estrada received immunity for any drug-related offenses in this case. Although he did not receive immunity for any murder offense, the record supports a reasonable inference that Manzo's counsel implied, in cross-examining Estrada regarding his partial immunity agreement, he had an improper motive to lie and testify favorably to the prosecution's case. Furthermore, Estrada was arrested and charged with murder on August 3, 2007, and was released from jail three weeks later. Although, as Manzo notes, the murder charge against Estrada was not dismissed with prejudice and therefore could be refiled, the record supports a reasonable inference that Manzo's counsel implied, in cross-examining Estrada regarding his initial arrest for murder and subsequent release from jail three weeks later, Estrada obtained a benefit and had an improper motive to lie and testify favorably to the prosecution's case. That inference is bolstered by the implication by Manzo's counsel during his opening statement that Estrada's statements to police were self-serving so that he would not face 25 years to life in prison and could, instead, go home on August 24 after three weeks in jail.
When considered together, Estrada's partial immunity agreement and his release from jail three weeks after he was arrested for murder, matters revealed during his cross-examination, support a conclusion Manzo's counsel impliedly claimed Estrada had an improper motive to lie during his testimony at trial. Pursuant to Evidence Code section 791, subdivision (b), the court properly allowed the prosecutor to present evidence of Estrada's consistent statements made prior to the time those improper motives arose (i.e., before he was released from jail and before he received immunity for any drug-related offenses in this case). The fact Estrada may have had another motive to lie since the time of his arrest and through the time of his trial testimony (i.e., to avoid being charged with and convicted of murder) does not show his counsel did not impliedly claim Estrada had a separate intervening improper motive to lie and testify favorably to the prosecution's case. (People v. Ainsworth, supra, 45 Cal.3d at p. 1014; People v. Hillhouse, supra, 27 Cal.4th at pp. 491-492; Jones, supra, 30 Cal.4th at pp. 1106-1107; People v. Andrews, supra, 49 Cal.3d at pp. 210-211; People v. Hayes, supra, 52 Cal.3d at p. 609.) People v. Coleman (1969) 71 Cal.2d 1159, cited by Manzo, is factually inapposite and does not persuade us to conclude otherwise. We conclude the trial court did not err by admitting evidence of Estrada's prior consistent statements.
D
Assuming arguendo the trial court erred by admitting evidence of Estrada's prior consistent statements, we nevertheless would conclude that error was harmless because there is no reasonable probability Manzo would have obtained a more favorable verdict had that evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Andrews, supra, 49 Cal.3d at p. 211.) As we discussed in part I.D. above, the evidence of Manzo's guilt of the murder and attempted murder offenses was overwhelming. We incorporate, without repeating here, our discussion of the extensive and detailed physical evidence, testimony of expert witnesses, and testimony of Estrada and other percipient witnesses, all of which overwhelmingly proved beyond a reasonable doubt that Manzo was guilty of those offenses. Although evidence of Estrada's prior consistent statements tended to corroborate and support the credibility of his trial testimony, that evidence was insignificant compared to the compelling corroboration of his trial testimony provided by the extensive and detailed physical evidence and expert and percipient testimony. We conclude it is not reasonably probable Manzo would have obtained a more favorable verdict had the trial court excluded the evidence of Estrada's prior consistent statements.
III
Cumulative Error
Manzo contends the trial court's cumulative errors of admitting his statements to police and admitting Estrada's prior consistent statements were prejudicial and deprived him of his due process right to a fair trial. However, because we concluded the trial court did not err by admitting evidence of Estrada's prior consistent statements, there is no cumulative error. Rather, the only error committed by the trial court was admission of Manzo's statements to police, which we addressed in part I above and concluded was harmless beyond a reasonable doubt.
IV
Discharging a Firearm at an Occupied Vehicle
Manzo contends the evidence is insufficient to support his section 246 conviction for discharging a firearm at an occupied vehicle. He argues that because there is no evidence showing the gun was outside the truck when it was discharged, he could not be convicted of discharging a firearm "at" an occupied vehicle.
A
Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building [or] occupied motor vehicle . . . is guilty of a felony . . . ." (Italics added.) In People v. Stepney (1981) 120 Cal.App.3d 1016 (Stepney), the court addressed the question of whether a defendant could be found guilty of a section 246 offense if the discharge of the firearm occurred within an inhabited dwelling house. (Stepney, at pp. 1018-1021.) In that case, the defendant entered the home through a window and then fired a bullet at a television set in the living room. (Id. at p. 1018.) Stepney addressed the argument that a person could shoot "at" a building from within as well as from without the building. (Id. at p. 1019.) The court concluded that, to the extent section 246 was ambiguous on that issue, it must be interpreted favorably to the defendant, stating:
"[I]t is well settled that the court must construe that ambiguity in favor of the defendant. When language reasonably susceptible of two constructions is used in penal law, ordinarily that construction more favorable to the defendant will be adopted. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute." (Stepney, at p. 1019.)

In the circumstances in Stepney, the court reversed the defendant's section 246 conviction, holding that "the firing of a pistol within a dwelling house does not constitute a violation of . . . section 246." (Stepney, supra, 120 Cal.App.3d at p. 1021; cf. People v. Morales (2008) 168 Cal.App.4th 1075, 1078-1082 [defendant could not be convicted of a section 246 offense for shooting "at" an inhabited dwelling if he, while inside the attached garage, shot the gun into the kitchen of the house].) In contrast, in People v. Jischke (1996) 51 Cal.App.4th 552, the court affirmed the section 246 conviction of a defendant who shot a gun into the floor of his apartment and through the ceiling of the apartment below, striking its occupant. (Jischke, at pp. 555-556.) In Jischke, the court concluded the defendant had shot "at" the adjacent dwelling below his apartment. (Id. at p. 556.)
When a defendant argues on appeal that the evidence is insufficient to support his or her conviction, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of [the evidence] for that of the fact finder." (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
B
Estrada testified Manzo was standing in the open driver's door of Manzo's truck when Manzo pointed the gun at Valadez and him (Estrada) and discharged it, striking Valadez. Campman testified the gun was at least two to three feet from Valadez's face when fired. Photographs of the police reenactment, based on Estrada's testimony and physical evidence, showed the gun was 27 inches from the face of the person sitting in the right passenger's seat and leaning slightly forward. Those photographs show the gun, along with the shooter's right hand and forearm, are clearly within the periphery of Manzo's truck. There was no evidence presented showing the gun was outside the truck's periphery at the time it was discharged.
C
In construing statutory language, it is our objective to ascertain legislative intent and to effectuate the statute's purpose. (People v. Overstreet (1986) 42 Cal.3d 891, 895; People v. Woodhead (1987) 43 Cal.3d 1002, 1007.) "In determining [legislative] intent, we look first to the words themselves." (Woodhead, at p. 1007.) We cannot create an offense by giving the words of a statute false or unusual meanings. (People v. Baker (1968) 69 Cal.2d 44, 50.) Rather, we "must give effect to statutes according to the usual, ordinary import of the language employed in framing them." (Stepney, supra, 120 Cal.App.3d at p. 1019.) "When statutory language is clear and unambiguous, there is no need for construction and courts should not indulge in it." (Overstreet, at p. 895.) However, "[w]hen the language is susceptible of more than one reasonable interpretation, . . . we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, [and] public policy . . . ." (Woodhead, at p. 1008.) Finally, and importantly in this case, the rule of lenity provides that "[w]hen language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute." (Overstreet, at p. 896; see also Woodhead, at p. 1011; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 ["[i]t is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit"]; Stepney, at p. 1019.)
D
We agree with Manzo's assertion that, in the circumstances of this case, the evidence is insufficient to support his section 246 conviction. Applying the rule of lenity, we conclude the language of section 246 must be construed as excluding discharge of a firearm located within the occupied motor vehicle. We note section 246's express language focuses on the firearm, not the person holding the firearm, in prohibiting the "discharge [of] a firearm at an . . . occupied motor vehicle . . . ." (Italics added.) Furthermore, section 246 bars discharging a firearm "at" an occupied motor vehicle. Stepney concluded "the firing of a pistol within a dwelling house does not constitute a violation of" section 246. (Stepney, supra, 120 Cal.App.3d at p. 1021, italics added.) Stepney focused on the location of the pistol, not the location of the person holding it.
Application of the rule of lenity also requires us to conclude that section 246's phrase "discharge a firearm at an . . . occupied motor vehicle" means the firearm must be outside the periphery of the motor vehicle to be discharged "at" the vehicle. In the context of section 246, the word "at" is reasonably susceptible of a meaning involving both the direction the firearm is pointed and its location at the time of discharge. First, the firearm must be directed or pointed "at" or "toward" the motor vehicle at the time of discharge. Second, the firearm must be located outside the periphery of the motor vehicle at the time of discharge. Therefore, the word "at" in this context is reasonably susceptible of a meaning that a firearm located within the periphery of a motor vehicle cannot be discharged "at" or "toward" that vehicle. As Stepney noted, the legislative history of section 246 does not reveal any intent to include the discharge of a firearm within an occupied dwelling (or vehicle).^[3] (Stepney, supra, 120 Cal.App.3d at p. 1020.) To paraphrase Stepney, the discharge of a firearm within an occupied motor vehicle does not constitute a violation of section 246. (Stepney, at p. 1021.)
Furthermore, section 246's language is reasonably susceptible of a meaning that does not make the location of the person an element of the crime (i.e., that a § 246 offense does not depend on where the shooter is standing or otherwise located at the time the firearm is discharged). Under this reasonable construction of section 246, if a firearm is within a vehicle when it is discharged, there can be no section 246 offense of firing at that vehicle, regardless of whether all or part of the person holding that firearm is located within or without the periphery of the vehicle.^[4]
Accordingly, assuming arguendo section 246's language is reasonably susceptible to an interpretation prohibiting discharge of a firearm within an occupied motor vehicle (whether or not the person shooting the gun is within the vehicle or standing just outside its periphery) in addition to the reasonable interpretation of section 246, discussed above, not prohibiting discharge of a firearm within an occupied motor vehicle, then the rule of lenity applies and requires us to adopt the construction most favorable to the defendant. (People v. Overstreet, supra, 42 Cal.3d at p. 896; People v. Woodhead, supra, 43 Cal.3d at p. 1011; Keeler v. Superior Court, supra, 2 Cal.3d at p. 631; Stepney, supra, 120 Cal.App.3d at p. 1019.) Therefore, even if the People are correct that section 246's language can be reasonably construed as prohibiting the discharge of a firearm within an occupied motor vehicle by a person standing outside the periphery of the vehicle, we nevertheless must adopt the alternative reasonable construction that section 246 does not prohibit such conduct.^[5] The People do not cite anything in section 246's language or the circumstances in this case precluding the application of the rule of lenity. (Overstreet, at p. 896; Keeler, at p. 631.) If the Legislature wants to expand section 246's provisions to prohibit the discharge of a firearm located within an occupied dwelling or motor vehicle when the shooter is standing or located outside the periphery of that dwelling or vehicle, it can amend section 246's language to so provide. However, until section 246 is so amended, we apply the rule of lenity and construe section 246 as excluding such conduct.
In so interpreting section 246, we are aware of, and have considered the reasoning in, People v. Jones (2010) 187 Cal.App.4th 266, which reached a contrary conclusion in similar circumstances based on the location of the person, rather than the firearm, at the time of discharge. However, People v. Jones did not address whether section 246's language could be reasonably construed in the manner in which we have construed it. Therefore, that case did not address whether the rule of lenity would, or should, apply to require construction of section 246 as discussed above. In any event, to the extent People v. Jones concluded, expressly or implicitly, section 246's language clearly and unambiguously prohibits the discharge of a firearm within an occupied motor vehicle by a person standing outside the periphery of the vehicle, we disagree with its reasoning and decline to follow its holding.
Because the evidence is insufficient to support a finding that the firearm was outside the periphery of his truck when Manzo discharged it at Valadez and Estrada (passengers in his truck), applying our interpretation of section 246's provisions, we conclude there is insufficient evidence to support Manzo's section 246 conviction of discharging a firearm at an occupied motor vehicle.^[6] Accordingly, his section 246 conviction must be reversed.
DISPOSITION
Manzo's section 246 conviction (on count 2), along with the true findings on the allegations related to that conviction, are reversed. In all other respects, the judgment is affirmed. The matter is remanded for resentencing.
CERTIFIED FOR PUBLICATION


McDONALD, Acting P. J.

WE CONCUR:



O'ROURKE, J.



IRION, J.





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