Overman

INTRODUCTION

Defendant was charged with the attempted murders of Larry Dahl (Larry) and Matthew Bowers (Bowers) in counts 1 and 2, assaulting the same men with a firearm in counts 3 and 4, and discharging a firearm at an occupied building in count 5. (Pen. Code, §§ 664, 187, 245, subd. (a)(2) & 246.) It was further alleged that defendant personally discharged a firearm in counts 1 and 2 (§ 12022.53, subd. (c)), and personally used a firearm in counts 3, 4, and 5 (§§ 12022.5, subd. (a)(1) [counts 3 and 4], 667 & 1192.7, subd. (c)(8) [count 5].) A jury found defendant not guilty of the attempted murder charges (counts 1 and 2), but convicted him of assaulting Larry and Bowers with a firearm and of discharging a firearm at an occupied building (counts 3, 4, and 5). The jury also found the personal use allegations true. Defendant was sentenced to 12 years in prison.

Defendant appeals. He contends that the trial court erroneously instructed the jury on the “intent” element of discharging a firearm at an occupied building (§ 246) in count 5, and erroneously refused to instruct the jury on the lesser included offense, as charged, of the grossly negligent discharge of a firearm…