Reported / Citable
Background
Kristhiam Uceda was a 20-year-old former Mt. Diablo High School student in Concord. In 2017, Uceda associated with several younger students in a group that aligned with Salvadoran identity and the color blue, and that came into conflict with another group of students who wore red and were identified by school staff with the Norteño gang. School officials and a resource officer worked to defuse the rivalry, and after one student left Mt. Diablo the conflict subsided.
That fall, Uceda and his group encountered a group of red-wearing teenagers at a Concord shopping center. After an initial confrontation in which one of Uceda’s friends fired a BB gun, the group regrouped at a nearby home, returned in two cars, and one of the passengers fired a real handgun out of Uceda’s vehicle, hitting J.R., a bystander, in the leg. Months later, Uceda himself shot and killed Lawrence Janson during a separate confrontation near Mt. Diablo High School.
A Contra Costa County jury convicted Uceda of murder for the Janson killing and of shooting from a motor vehicle in violation of Penal Code section 26100, subdivision (c) for the J.R. shooting. The jury found a gang enhancement true on the J.R. count under Penal Code section 186.22 but not true on the murder. On appeal, Uceda argued that the trial court should have instructed the jury on lesser included offenses for both crimes and challenged the sufficiency of the evidence supporting the gang enhancement.
The Court’s Holding
The First District Court of Appeal, Division One, in a partially published opinion, affirmed the murder conviction but reversed the conviction for shooting from a motor vehicle. The court held that grossly negligent discharge of a firearm under Penal Code section 246.3 is a lesser included offense of section 26100, subdivision (c), and that the trial court was required to instruct on that offense if there was substantial evidence the lesser but not the greater offense had been committed.
The evidence in this case supported giving that instruction. While the jury could find that the shooting was committed from a motor vehicle, there was also evidence the gun was passed around and the shooter may have momentarily exited or leaned out of the vehicle in a way that complicated the section 26100 element. The jury should have been allowed to convict on the lesser charge if it had reasonable doubt about that vehicle element. Failing to instruct on the lesser included offense was not harmless because the jury was forced into an all-or-nothing choice on the greater offense.
The court rejected Uceda’s remaining challenges. The murder conviction stood because the trial court properly declined to instruct on imperfect self-defense and other lesser theories where the evidence did not support them. The gang enhancement on the J.R. count was supported by substantial evidence under the recent statutory amendments to section 186.22, including evidence linking the conduct to MS-13 by way of meetings with members in San Francisco and the targeting of perceived gang rivals. On remand, the People may retry the section 26100, subdivision (c) charge or accept entry of judgment on the lesser included offense of grossly negligent discharge of a firearm.
Key Takeaways
- Grossly negligent discharge of a firearm under Penal Code section 246.3 is a lesser included offense of shooting from a motor vehicle under Penal Code section 26100, subdivision (c).
- Trial courts must instruct on a lesser included offense whenever substantial evidence in the record could support a conviction on that lesser offense even if not the greater.
- Failure to give the lesser-included instruction is generally prejudicial because it forces the jury into an all-or-nothing verdict and may distort deliberations.
- Under the amended Street Terrorism Enforcement and Prevention Act, evidence of more-than-reputational benefit can include traveling to meet members of an associated gang and targeting perceived rivals.
- On reversal, the prosecution can choose to retry the greater offense or accept entry of judgment on the lesser charge supported by the existing verdict.
Why It Matters
The published portion of the opinion settles a recurring question in firearm-related prosecutions about whether section 246.3 is a lesser included offense of section 26100, subdivision (c). Defense lawyers should request the lesser included instruction whenever there is any evidence to support uncertainty about the “from a motor vehicle” element. Prosecutors should be prepared to accept entry of judgment on the lesser charge as a quicker path to finality than retrying complex shooting cases.
The opinion also illustrates how the amended gang-enhancement statute is being applied. Even after the Legislature tightened the standards in 2021 and 2022, evidence of coordinated activity, meetings with established gang members, and targeting of rivals can still support an enhancement. That makes early scrutiny of the gang-related evidence all the more important in pretrial motions and jury selection.