Opinion
B160779.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. ABEL GUERRERO NUNGARAY, Defendant and Appellant.
Mary Woodward Wells, 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, Assistant Attorney General, Scott A. Taryle and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
Is it cruel and unusual punishment to impose a prison sentence of 29 years to life for an armed robber who fired several shots at his victims, wounding one? No.
BACKGROUND
Mr. Alhosry owns a liquor store/market. Mr. Munoz works there. While the two and a customer were in the place, defendant walked in wearing a mask and wielding a rifle. While loudly, profanely, and relentlessly demanding money, defendant fired a shot in Munoz direction. Alhosry opened the register and put the money into a bag held by defendant. Defendant profanely demanded more money and started to leave only when shown there was no more. On his way out, defendant fired at Alhosry, the bullet going right by Alhosrys head. As defendant continued to shoot, Alhosry retrieved a gun and started firing back. Alhosry and defendant wounded each other, Alhosry suffering two leg wounds, one of which (a through and through wound) barely missed inflicting a fatal wound to the femoral artery.
The customer flagged down a passing police officer and gave him the license number of the getaway vehicle.
Defendant waived jury. The trial court found him guilty of two counts of second degree robbery and sustained a firearm/great bodily injury enhancement. Defendant received a sentence of 3 years for the Alhosry robbery, plus a 25-year-to-life enhancement for inflicting great bodily injury on him with a firearm. Defendant received a one-year consecutive sentence for the Munoz robbery.
DISCUSSION
Defendant attacks the firearm enhancement as cruel and unusual. He points, in part, to the trial courts characterization of the near-lethal wound as "minimal" and the courts expressed misgivings about imposing such a heavy sanction. We reject his argument, as well as any notion that such a penetrating wound is minimal. We also flatly reject defendants attempt to shift the blame to Alhosry by claiming that the victim "provoked" the "exchange of gunfire."
Nor are we moved by defendants plea that his criminal record is "minimal" and that he "was battling a drug and alcohol problem . . . ." When he committed this violent crime, defendant was on adult probation for commercial burglary. As a juvenile, he was placed on probation for auto theft and sent to camp for a felonious assault. We do not consider this a "minimal" record. The record contains nothing to show that defendant has ever made the slightest effort to deal with his addiction to rock cocaine. Accordingly, we do not consider his addiction a mitigating circumstance.
We find the enhancement (and thus the overall sentence) constitutional, both on its face (People v. Gonzales (2001) 87 Cal.App.4th 1, 16-19) and as applied to defendant (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1215-1216). Quite simply, defendant is an exceedingly dangerous criminal who was plainly prepared to kill in order to secure a few hundred dollars. His wanton use of the rifle demonstrates that the public can be protected from him only by lengthy imprisonment. Another centimeter or two would have turned this into a murder case with defendant serving life without parole.
DISPOSITION
The judgment is affirmed.
We concur: SPENCER, P.J., MALLANO, J.