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People v. Facundo

Court of Appeals of California, Second Appellate District, Division Four.
Nov 19, 2003
No. B162785 (Cal. Ct. App. Nov. 19, 2003)

Opinion

B162785.

11-19-2003

THE PEOPLE, Plaintiff and Respondent, v. MAX FACUNDO, Defendant and Appellant.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.


Max Facundo appeals from judgment entered following a jury trial in which he was convicted in count 2 of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)) and in count 3 of attempted second degree robbery (Pen. Code, §§ 664/211). The jury additionally found, as to count 2, that he personally used a firearm, to wit, a handgun within the meaning of Penal Code sections 12022.5, subdivisions (a) and (d), 1192.7, subdivision (c) and 667.5, subdivision (c) and personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). As to count 3, the jury found, inter alia, that he personally and intentionally discharged a firearm causing great bodily injury in violation of Penal Code section 12022.53, subdivision (d). Sentenced to the upper term of three years for the attempted robbery and to an additional and consecutive term of imprisonment for 25 years to life pursuant to Penal Code section 12022.53, subdivision (d), he contends the indeterminate term enhancement must be reversed because the prosecution failed to prove during the attempted robbery appellant intentionally discharged his firearm. He additionally claims his sentence is cruel and unusual punishment. For reasons explained in the opinion, we affirm the judgment but remand the matter to the trial court with directions to amend the abstract of judgment.

The jury also found as to count 3 that appellant used a handgun within the meaning of Penal Code section 12022.53, subdivision (b), discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (c) and that he personally inflicted great bodily injury in violation of Penal Code section 12022.7, subdivision (a), causing the offense to become a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(8).

STATEMENT OF FACTS

AND PROCEDURAL HISTORY

On October 27, 2001, at approximately midnight, Fabian Mejia, an off-duty police officer for the Calexico California Police Department, was talking on a pay phone at the intersection of Tanaya and Atlantic Avenue in South Gate when appellant approached him. Mejia tried to keep his eye on appellant, but he lost sight of him as appellant passed. Mejia felt "really scared" because he could not see appellant but could feel the warmth of his body, standing almost behind him. Mejia turned around and was standing one or two feet from appellant, when he saw that appellant was holding a chrome or nickel-plated pistol in his right hand and was bringing it up to face level. Appellant placed his left hand over the slide, pulled it back and then forward. When appellant pulled the slide back, Mejia believed appellant "was chambering a round into that gun" and was going to shoot and rob him. As appellant pulled the slide back and let it go, he told Mejia, "Hey, homey. Dont do anything stupid." Mejia quickly raised the front of his sweater, placed the grip of his revolver in his right hand, and pulled it straight out and forward, towards appellants chest, and fired four rounds. Mejia fired at that moment because he wanted to stop appellant from shooting and robbing him and believed his life was in danger. Before shooting appellant, Mejia did not say anything to appellant or identify himself as a police officer because he did not have time. Once he pulled the trigger, Mejia heard a loud noise and saw a "lot of fire," which he believed was the muzzle flash from his gun, and he tried to move away from appellant. Appellant turned and started to run. Mejia, thereafter, pulled the trigger of his firearm twice, but it only fired once as he had run out of ammunition.

Mejia was wounded in the arm, abdomen and inner thigh. He underwent surgery and experienced pain and scarring as a result of the shooting. Appellant was also treated at the hospital for gunshot wounds.

DISCUSSION

I

Appellant contends the indeterminate term enhancement imposed pursuant to Penal Code section 12022.53, subdivision (d) must be reversed because the prosecution did not prove that during the commission of the attempted robbery appellant intentionally discharged his firearm. Appellant contends that while the victim testified appellant displayed a semiautomatic pistol and "chamber[ed] a round" by pulling the slide back and forward, Mejia did not testify he saw appellants finger on the trigger or that he saw appellant pull the trigger. Appellant argues there was no evidence of appellants intent to shoot and it is more likely that if appellant did pull the trigger he did so as a reflexive reaction to being shot himself at point blank range by large-caliber, hollow-point ammunition.

"The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. [Citations.]" (People v. Alvarez (1996) 14 Cal.4th 155, 225, italics in original.)

Penal Code section 12022.53, subdivision (d) provides: "Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a) . . . and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury . . . to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."

The jury was instructed pursuant to CALJIC No. 17.19.5 in relevant part that if it found appellant guilty of certain of the charged offenses, it was to determine whether appellant "intentionally and personally discharged a firearm and proximately caused great bodily injury to a person in the commission of those felonies. [¶] . . . [¶] The term `intentionally and personally discharged a firearm, as used in this instruction, means that the defendant himself must have intentionally discharged it."

"[O]rdinarily when the statutory definition of a crime consists only of the description of a prohibited act, without reference to intent to do a further act or achieve a future consequence, the crime is one requiring a general criminal intent; the question is whether the defendant . . . intentionally did that which the law declares to be a crime. [Citation.]" (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437-1438.)

The terms "intentionally" and "willfully" have been determined to be synonymous, implying simply a purpose or willingness to do an act (see In re Smith (1972) 7 Cal.3d 362, 364.) "The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term `willful requires only that the prohibited act occur intentionally. [Citations.] [¶] . . . [¶] The prohibited conduct, the discharge of a firearm, is commonly understood to mean the firing or shooting of a weapon by expelling the charge or bullet." (In re Jerry R., supra, 29 Cal.App.4th at pp. 1438-1439.)

The record indicates that appellant pointed his semi-automatic weapon at Mejias face only several feet away, threatened Mejia and "chamber[ed] a round" of ammunition. Contrary to appellants claim, a reasonable jury could have determined to the requisite degree of certainty that appellant purposefully fired the weapon.

II

The court sentenced appellant to the upper term of three years for the attempted robbery, stating the crime involved great violence and "but for the grace of God, the victim would be dead at this point." Pursuant to Penal Code section 12022.53, subdivision (d), he was sentenced to an additional and consecutive term of imprisonment for 25 years to life, for a total of 28 years to life. Sentence on the remaining counts was imposed and stayed pursuant to Penal Code section 654.

The probation report reflected that appellant was "a twenty year old male who [was] on summary probation for taking a vehicle without the owners consent. As a juvenile, [appellant] was sentenced to camp for burglary. He [was] also awaiting disposition in a [case involving] possession of a . . . controlled substance . . . . He denied he had any gang ties, however records revealed he was associated with Primera Flats gang members [and had] a moniker of `Clever and `Lilmax. He admitted use of methamphetamine and marijuana. [Appellants] employment history [was] poor and his residential ties questionable. [¶] [Appellant] committed the offenses in this case without regard to the safety or well being of another human being. [Appellant] pointed a firearm at the victim, who happened to be an off-duty police officer. The officer pulled out his off duty weapon and instead of putting his gun down, [appellant] and the officer became involved in an exchange of gunfire. [Appellant] poses . . . a threat to the community."

Appellant contends his sentence of 28 years to life is cruel and unusual in light of his extreme youth and lack of intent. As discussed above, the finding that appellant intentionally discharged the firearm during the attempted robbery is supported by substantial evidence. Additionally, contrary to his claim, his sentence is not so grossly disproportionate as to violate the United States and California Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; Ewing v. California (2003) 538 U.S 11 [123 S.Ct. 1179, 1189-1190]; Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 1174-1176]; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828.) Given his prior record and the facts related both to him and his offense, no constitutional violation has occurred by reason of his sentence. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 6-7; People v. Martinez (1999) 76 Cal.App.4th 489, 494-498.)

III

Respondent contends, and appellant agrees, the abstract of judgment does not reflect the sentenced imposed. We observe, inter alia, the abstract of judgment fails to reflect that in count 3, the upper term of three years was imposed and was to be served consecutive to the term of 25 years to life for a total of 28 years to life. The abstract of judgment should be amended to conform to the trial courts pronouncement of judgment. (See People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094.)

While respondent asserts the three-year term is missing for count 2, it is count 3. Additionally, we observe appellants name appears in the box entitled "Judge."

DISPOSITION

The judgment is affirmed, and the trial court is directed to amend the abstract of judgment to conform to the trial courts pronouncement of judgment.

We concur: VOGEL (C.S.), P.J., EPSTEIN, J.


Summaries of

People v. Facundo

Court of Appeals of California, Second Appellate District, Division Four.
Nov 19, 2003
No. B162785 (Cal. Ct. App. Nov. 19, 2003)
Case details for

People v. Facundo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MAX FACUNDO, Defendant and…

Court:Court of Appeals of California, Second Appellate District, Division Four.

Date published: Nov 19, 2003

Citations

No. B162785 (Cal. Ct. App. Nov. 19, 2003)