P. v. Fernandez

 

 

 

 

 

 

 

 

 

Filed 5/1/13  P. v. Fernandez CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(Yuba)

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>

THE PEOPLE,                           Plaintiff and Respondent,               v.   CORY WALLACE FERNANDEZ,                           Defendant and Appellant.

C070130   (Super. Ct. No. CRF10-256)

 

            Following
a bench trial, the trial court found defendant Cory Wallace Fernandez guilty of
attempting to murder one housemate
and assaulting another with a firearm, along with another offense and two
firearm enhancements.href="#_ftn1"
name="_ftnref1" title="">[1]  (Pen. Code, §§ 664/187, subd. (a), 245,
subd. (a)(2), & former § 12021, subd. (a)(1).)  It sentenced him to state prison. 

            On
appeal, defendant contends there is insufficient
evidence of his intent to kill the attempted murder victim.  He also maintains that he is entitled to
additional custody and conduct credit, a point the People concede.  We shall affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

            The
parties provide lengthy summaries of the evidence at trial.  We limit our account, however, to the facts
relevant to defendant’s argument.

            The
assault victim had multiple people living with him in itinerate fashion in
bedrooms and sleeping on couches in the four-bedroom house.  Neighbors described the atmosphere at the
residence as being obnoxious, rowdy, and loud; drinking, drug ingestion, and
fighting all took place.  Defendant had
been living there for about six months. 
The assault victim testified that he and defendant were “pretty good
friends most of the time,” though defendant’s roommate testified that she heard
them argue “quite a bit” and a neighbor also had heard the assault victim
yelling at defendant.  The attempted
murder victim had known defendant for about six to eight months, and had
thought that they were good friends. 

            On May 28, 2010, the attempted murder
victim was visiting the residence, helping to put a spark plug into a
four-wheeler.  He had been there only a
few minutes when defendant challenged him about taking defendant’s firewood,
which the victim admitted (saying “so what?”). 
The attempted murder victim then challenged defendant to “kick [the
victim’s] ass” and hurt him.  Defendant
told the victim to check out what defendant had for him.  Defendant then shouldered a .22-caliber long
rifle that he had been holding for about a minute and shot the attempted murder
victim.  (The witness did not see from
where the rifle came.)  The victim was
six to 10 feet away and unarmed, and had not verbally or physically threatened
defendant.  The bullet caused his right
lung to collapse and lodged in his right shoulder blade. 

            The
attempted murder victim walked briefly into the house to look for his cell
phone.  When he could not find it, he
came back out on the porch and sat down on a couch.  He saw defendant beating the unarmed assault victim
over the head with the rifle, who had also been on the porch and involved in
the dispute about the firewood (but who otherwise had not provoked defendant in
any manner).  Although the attempted
murder victim was sitting on the porch, defendant did not attack him further.  Defendant threw the weapon onto a chair and
told another resident to wipe the prints off of it, and then defendant “beat
feet” down the driveway.  An investigator
found unspent .22-caliber casings on defendant’s bed. 

DISCUSSION

I.  The Evidence
of Intent to Kill Is Sufficient

            “Attempted murder requires
the specific intent to kill” (and a direct but ineffectual act toward that
goal) in the form of express malice, which is a desire for the victim’s death
or the knowledge “to a substantial certainty that the victim’s death will
occur.”  (People v. Booker (2011) 51 Cal.4th 141, 177-178.) 

            Ignoring
the principle of conflicting inferences (People
v. Lenix (2008) 44 Cal.4th 602, 625-626 [must adopt inferences that
favor judgment]) and engaging in the pointless task of comparing the present
case with others on the issue of sufficient evidence (People v. Rundle (2008) 43 Cal.4th 76, 137-138 [reviewing
sufficiency of evidence “necessarily calls for analysis of the unique facts and
inferences present in each case” and therefore “comparisons between cases are
of little value”]), defendant asserts the circumstances of the shooting “do not
evidence an intent to kill.”  He asserts
the witnesses did not specifically attest to him aiming directly at the victim;
he did not make any express indication of an intent to kill; and he did not
further attack the victim in any manner (whom he easily could have killed with
a shot at close range had that been his intent).  Defendant also posits that he had much more
of a motive to kill the assault victim, whom he did not shoot, so “it is even less likely that he harbored an intent to
kill” the other victim.  He thus
considers a finding of intent to kill to be purely speculative. 

            Defendant’s
own authority makes the points that “absence of a clear motive does not
demonstrate the lack of an intent to kill,” that “shooting a firearm toward a
victim at close range in a manner that could
have inflicted a mortal wound . . . is sufficient to support an
inference of an intent to kill” (italics added), and “[t]hat defendant may have
fired once and then abandoned his efforts does not compel the conclusion he
lacked the intent to kill in the first instance.”  (People
v. Houston (2012) 54 Cal.4th 1186, 1218; accord, People v. Smith (2005) 37 Cal.4th 733, 741-742; >People v. Lashley (1991)
1 Cal.App.4th 938, 945-946 (Lashley)
[act of firing .22-caliber rifle toward victim “at a range and in a manner that
could have inflicted a mortal wound had the bullet been on target” supports
inference of intent to kill].) 
Defendant’s contentions to the contrary simply amount to an effort to
fashion inferences favorable to himself on the present evidence. 

            The
absence of any direct evidence of his intent to kill is irrelevant.  (People
v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [such intent “must
usually be derived from all the circumstances”]; Lashley, supra,
1 Cal.App.4th at pp. 945-946 [defendants “do[] not often declare
[their] state of mind either before, at, or after the moment” they shoot and
thus intent must be inferred from circumstances].)  That defendant aimed at the victim may be
inferred from the bullet hitting its mark; there certainly is not any evidence
that defendant might have aimed elsewhere. 
Defendant’s mere transitory annoyance over the firewood and his friend’s
taunts can nonetheless be consistent with an intent to kill.  (People
v. Arias (1996) 13 Cal.4th 92, 162.) 


            In short,
a finder of fact might reasonably have found defendant lacked an intent
to kill, but it is an equally reasonable inference that he intended at
least briefly to shoot to kill.  As the
evidence does not favor defendant as a matter of law, it is sufficient to
support the verdict of attempted murder. 


II.  Credits

            The trial
court committed two computational errors in determining defendant’s custody and
conduct credits.  Defendant had been in
continuous custody from the date of his arrest on May 28, 2010.  Thus, as of the date of his sentencing
(January 9, 2012), he had been in custody 592 days, not 591.  Conduct credits at a rate of 15 percent (Pen.
Code, § 2933.1) amount to 88 days for either figure, not 82.  We therefore will modify the judgment
accordingly. 

DISPOSITION

            Defendant
is awarded 592 days of custody credit and 88 days of conduct credit.  As thus modified, the judgment is
affirmed.  The trial court is directed to
prepare an amended abstract of judgment and forward a certified copy to the href="http://www.mcmillanlaw.com/">Department of Corrections and
Rehabilitation.

 

                                                                                                        BUTZ                              , J.

 

 

We concur:

 

 

               NICHOLSON                     , Acting P. J.

 

 

               MAURO                              , J.