P.

DISCUSSION

I. Instruction on Lesser Included Offense

Loza asserts the trial court erred when it failed to sua sponte instruct the jury

regarding negligent discharge of a firearm (Pen. Code, § 246.3, subd. (a)) as a lesser

included offense to shooting at an inhabited dwelling or occupied vehicle (Pen. Code,

§ 246, undesignated statutory references are to this code). The Attorney General

concedes that negligent discharge of a firearm is a lesser included offense to shooting

at an inhabited dwelling or vehicle, but asserts there is no substantial evidence from

which the jury could have concluded that Loza was guilty of the lesser offense. We

agree.

"[T]he sua sponte duty to instruct on a lesser included offense arises if there is

substantial evidence the defendant is guilty of the lesser offense, but not the charged

offense. [Citation.]" (People v. Breverman (1998) 19 Cal.4th 142, 177.) "In

deciding whether evidence is 'substantial' in this context, a court determines only its

bare legal sufficiency, not its weight. [Citations.]" (Ibid.)

The crimes of shooting at an occupied vehicle (§ 246) and grossly negligent

discharge of a firearm (§ 246.3) "…