People v. Delgado CA4/2

I. INTRODUCTION

Early one morning, while high on methamphetamine, defendant and appellant

Ricardo Delgado, Jr. and his live-in girlfriend were arguing in a bedroom they shared

with their three-year-old daughter Jane Doe. Defendant retrieved a handgun from under

the bed and it discharged. A bullet grazed the girlfriend’s skull and pierced the wall

approximately one foot above the crib where Doe lay sleeping. A jury found defendant

guilty as charged of felony child endangerment (Pen. Code, § 273a, subd. (a)),1 among

other offenses.

Defendant was sentenced to 18 years 4 months in prison and appeals, claiming the

trial court prejudicially erred in failing to instruct sua sponte on the lesser included

offense of misdemeanor child endangerment. (§ 273a, subd. (b).) We affirm. No

instructions on the lesser offense were warranted because insufficient evidence showed

defendant committed the lesser but not the greater offense. Even if, as defendant

testified, he did not mean to shoot his girlfriend and was not pointing the gun when it

accidentally discharged, under the circumstances his actions were likely to produce great

bodily harm or death to Doe. (§ 273a, subd. (a).)…