Moore

Dual Esco Moore appeals from a judgment of imprisonment after a jury found him guilty of shooting at an inhabited dwelling (Pen. Code, § 246).

On July 26, 1980, Ida Gantt’s teenage son was host at a birthday party in the basement of his mother’s house in Oakland. At about midnight, appellant, codefendant Browner and a third man “crashed” the party and caused a commotion when asked to leave. Gantt, Leslie Fillmore and other adults went downstairs and told the men to leave. During the confrontation, Browner displayed a handgun.

The three men were escorted outside to a Cadillac which was parked across the street. Appellant got behind the wheel, while Browner went to the other side of the car and fired several shots at Gantt, Fillmore and the teenagers. The Cadillac sped off and returned a few minutes later. More shots were fired from the car. The car made a U-tum and again shots were fired as it passed the house. Fillmore chased the Cadillac; Browner fired shots at Fillmore’s car. After the men abandoned the Cadillac, Fillmore disabled the vehicle.

About a half-hour later, shots were fired from an orange LeMans which drove by the house. Fifteen minutes after that,…

I concur fully in the judgment of reversal and in the rationale

underlying that determination. However, I do not join in the suggestion that the trial court upon retrial should refrain from instructing upon Oakland Municipal *1068 Code section 2-2.14 which provides in relevant part: “It shall be unlawful for any person to at any time fire or discharge, or cause to be fired or discharged, any gun, . . . pistol, ... or fire-arm of any kind, . . . within the limits of the City of Oakland; ...”

Appellant was tried and convicted on an information charging a violation of Penal Code section 246, 1 shooting at an inhabited dwelling house. This shooting occurred in Oakland. It is thus impossible for appellant in so violating section 246 not to have violated the Oakland ordinance.

Appellant requested that the jury be instructed on a violation of Oakland Municipal Code section 2-2.14. This court validates the trial court’s refusal to give the instruction on the basis that a violation of the ordinance fits neither “the abstract statutory elements” definition nor “the accusatory pleading test” of a lesser included offense. I agree that the fit is not perfect but I fail to see how justice is…

Dual Esco Moore appeals from a judgment of imprisonment after a jury found him guilty of shooting at an inhabited dwelling (Pen. Code, § 246).

On July 26, 1980, Ida Gantt's teenage son was host at a birthday party in the basement of his mother's house in Oakland. At about midnight, appellant, codefendant Browner and a third man "crashed" the party and caused a commotion when asked to leave. Gantt, Leslie Fillmore and other adults went downstairs and told the men to leave. During the confrontation, Browner displayed a handgun.

The three men were escorted outside to a Cadillac which was parked across the street. Appellant got behind the wheel, while Browner went to the other side of the car and fired several shots at Gantt, Fillmore and the teenagers. The Cadillac sped off and returned a few minutes later. More shots were fired from the car. The car made a U-turn and again shots were fired as it passed the house. Fillmore chased the Cadillac; Browner fired shots at Fillmore's car. After the men abandoned the Cadillac, Fillmore disabled the vehicle.

About a half-hour later, shots were fired from an orange LeMans which drove by the house. Fifteen minutes…