Is there any overlap between assault with a firearm and grossly negligent discharge of a firearm?

Defendant next appears to argue that interpreting assault with a firearm to require no more than a possibility that the gunfire "could" hit someone makes that crime indistinguishable from the crime of grossly negligent discharge of a firearm ( 246.3). We disagree with the premise of this argument because the standard we apply is not grounded in what "could" happen. We also disagree that the argument compels us to reinterpret and elevate the intent requirement for assault with a firearm. Our Legislature can criminalize the same conduct under multiple statutes ( 954), and it is up to the People to decide which of those statutes to charge (People v. Wallace (1985) 169 Cal.App.3d 406, 409-410). The existence of possible overlap between these statutes is not problematic. And in this case, it is wholly irrelevant because defendant's jury had the opportunity to convict him of grossly negligent discharge of a firearm as a lesser-included offense to shooting at an inhabited dwelling, and chose not to do so.

The judgment is affirmed.