In Re Daniel R.

The central issue in this appeal is whether the crime of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) is a lesser and necessarily included offense of willfully and maliciously discharging a firearm at an occupied vehicle (Pen. Code, § 246). We hold assault with a deadly weapon is not necessarily included in the offense of discharging a firearm at an occupied vehicle. We therefore reverse the adjudication of wardship in this case.

Facts and Proceedings Below

Defendant, Daniel R., was charged in a petition pursuant to Welfare and Institutions Code section 602 alleging a violation of Penal Code section 246 by willfully and maliciously discharging a firearm at an occupied vehicle. Defendant denied the allegation and the matter was submitted to the court for adjudication based on the police reports and argument of counsel.

The facts gleaned from the police reports are as follows: On July 20, 1991, Jose Ramos and Mark Ochs were passengers in a car driven by Gabriel Valles. Shortly after midnight Valles saw a 1989 Ford Mustang pass by going in the opposite direction. Defendant was the driver of the Mustang and defendant’s brother, Jose R., and Garrick Alfaro…