Opinion
B158844.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. MARTIN G. VILLAREAL, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Appellant and Defendant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Betty B. Chim, Deputy Attorneys General, for Plaintiff and Respondent.
After a jury trial, Martin Villareal was convicted of the attempted murder of Juan Leon, the first degree murder of Manuel Muneton, and assault
with a semiautomatic firearm. The jury found true the special allegations that Villareal personally used a firearm and personally inflicted great bodily injury or death in the commission of both the attempted murder and the murder. The jury also found Villareal personally inflicted great bodily injury in the commission of the attempted murder and aggravated assault. Villareal was sentenced to a determinate term of seven years, and a consecutive and indeterminate term of 75 years to life. He appeals from the judgment, contending the evidence was insufficient to support his attempted murder conviction and the trial court erred in denying him presentence conduct credit for his attempted murder sentence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Prosecution Evidence
Around 8:00 or 9:00 p.m. on March 13, 2001, Leon drove Muneton to the bar and parked in the back. Appellant was at the bar. Muneton and Leon drank beer and played pool. At the end of the night, Leon played pool with appellant. Appellant did not appear drunk or under the influence of drugs. Appellant seemed "normal" and "calm."
During his testimony, Leon referred to Muneton as "Manuel Fernando" and "Fernando."
Around 1:15 a.m. Muneton and Leon left the bar and walked to Leons car. Leon sat in the drivers seat and Muneton sat in the passengers seat. As Leon started the engine, he noticed appellant approach Muneton and speak to him. Muneton emerged from the car and walked towards appellant and appellant fired about four shots at him. Muneton subsequently died.
Appellant quickly moved toward Leon, who had opened the drivers door in attempt to flee. Leon was unable to escape because appellant started shooting at him. Leon was still seated in the car when appellant fired two shots, hitting Leon in the wrist and shoulder, from about twelve feet away. Appellant ran into the bar. Leon ran down the alley and found a police officer in a patrol car.
Defense Evidence
Appellant did not testify or present a defense.
DISCUSSION
The attempted murder conviction was supported by substantial evidence.
Specific intent is a requisite element of the crime of attempted murder. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123, 959 P.2d 735; People v. Osband (1996) 13 Cal.4th 622, 683, 919 P.2d 640.) Thus, to sustain a conviction for attempted murder the evidence must demonstrate a deliberate intent to kill a fellow human being. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)
In considering the sufficiency of the evidence on this element we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430; People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal. Rptr. 431, 606 P.2d 738.)
Appellant does not deny firing two shots at Leon as he sat in a car approximately 12 feet away. He contends, however, there is insufficient evidence he intended to kill Leon and he is guilty at most of assault with a deadly weapon. We disagree. Leons testimony that after shooting Muneton, appellant quickly advanced on him, and before Leon could escape, shot him twice, wounding Leon in the shoulder and wrist constitutes substantial evidence appellant intended to kill Leon when he shot him. Shooting a victim from close range is sufficient to support an inference of intent to kill. (See, e.g., People v. Chinchilla, supra, 52 Cal.App.4th at p. 690; People v. Jackson (1989) 49 Cal.3d 1170, 1201, 264 Cal. Rptr. 852, 783 P.2d 211; People v. Bloyd (1987) 43 Cal.3d 333, 348-349, 233 Cal. Rptr. 368, 729 P.2d 802.) When we add to this, as the prosecutor argued, that Leon was the only witness to appellants killing of Muneton, we cannot say as a matter of law that no reasonable juror could convict appellant of attempted murder.
The trial court properly denied appellant presentence conduct credits.
Appellant concedes he is not entitled to presentence conduct credits under Penal Code section 2933.2 for his murder sentence. However, he argues the statute does not preclude an award of conduct credits towards his seven-year attempted murder sentence. We are not persuaded based upon "the plain meaning" of the words of the statute. (People v. Loeun (1997) 17 Cal.4th 1, 9, 947 P.2d 1313.)
In declining to award the requested 64 days of conduct credits for the 429 days appellant had served since his arrest, the court relied on Penal Code section 2933.2, which provides:
"(a) Notwithstanding Section 2933.1 or any other law, any person who is convicted of murder, as defined in Section 187, shall not accrue any credit, as specified in Section 2933.
"(b) The limitation provided in subdivision (a) shall apply whether the defendant is sentenced under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2 or sentenced under some other law.
"(c) Notwithstanding Section 4019 or any other provision of law, no credit pursuant to Section 4019 may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest for any person specified in subdivision (a).
"(d) This section shall only apply to murder that is committed on or after the date on which this section becomes operative."
Penal Code section 2933.2 became operative upon passage of proposed changes to section 190, which were adopted by the voters on June 2, 1998. (See People v. Herrera (2001) 88 Cal.App.4th 1353, 1366-1367.) The murder of Muneton occurred in 2001, and the statute is therefore applicable to appellant.
Section 2933.2 does not speak in terms of sentences imposed for murder as opposed to other crimes, but instead speaks of convictions for murder as the basis for a defendants ineligibility for pre and post sentence credits under Penal Code sections 4019 and 2.933.1, respectively. Section 2933.2 subdivision (b) states the restriction on presentence credits applies regardless of whether a defendant is sentenced under the determinate sentence laws (Pen. Code, § 1170, et seq.) or some other law. Section 2933.2, subdivision (c) mandates "a complete ban on presentence conduct credits" for defendants convicted of murder. (People v. McNamee (2002) 96 Cal.App.4th 66, 70.) By its plain meaning, section 2933.2 prohibits defendants convicted of murder from earning any credits even if they have been also convicted of other offenses in the same proceedings. (People v. McNamee, supra, at p. 70; see People v. Herrera, supra, 88
Penal Code section 4019 provides that a person confined or committed to a "county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp" is entitled to an additional two days credit toward any commitment for every four days actually served. These credits are calculated by dividing the number of actual days in custody by four and multiplying the result (excluding any remainder) by two. (Pen. Code, § 4019, subd. (d); People v. Guzman (1995) 40 Cal.App.4th 691, 697; People v. Madison (1993) 17 Cal.App.4th 783, 786-787.)
Penal Code section 2933.1 provides, in relevant part, that a person convicted of a felony offense listed in Penal Code section 667.5, "shall accrue no more than 15 percent of worktime credit" for confinement in the county jail between arrest and placement in the custody of the Director of Corrections.
Cal.App.4th at p. 1366.) Accordingly, appellant is not entitled to his requested conduct credits.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P.J., and MUNOZ (AURELIO), J.