P. v. Purdue

Filed 7/23/08 P. v. Purdue CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Norman J. Shapiro, Judge. Affirmed with directions.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________

Marquis Purdue appeals from the judgment entered following a jury trial in which he was convicted of assault with a semiautomatic firearm (Pen. Code,  245, subd. (b)), with a further finding that he personally used a firearm in the commission of the offense ( 12022.5), and possession of a firearm by a convicted felon ( 12021, subd. (a)(1)). In a bifurcated court trial, he was found to have suffered prior convictions under sections 667, subdivision (a), 667.5, subdivision (b), and 1170.12 (the Three Strikes law). Defendant was sentenced to a total term of 33 years in state prison, comprised of an upper term of 9 years on the assault charge, doubled under the Three Strikes law to 18 years; an enhancement of 10 years for firearm use; and an enhancement of 5 years for a prior felony conviction. He contends that the finding of firearm use under section 12022.5 was not supported by the evidence. We affirm and order the trial court to correct a clerical error in the abstract of judgment.^[1]

BACKGROUND

Around 5:45 p.m. on May 19, 2005, Darrell Johnson was sitting in his parked car on Victoria Avenue in Los Angeles, talking to a friend who was standing outside the car. Looking through his rearview mirror, Johnson saw an SUV approach with [t]wo weapons hanging out of the window[s]. One of the weapons, which was protruding from the front passenger window, was described by Johnson as like an automatic weapon, long  long weapon. The other, which was protruding from the rear passenger window, was a handgun. Johnson then heard tires screeching and shots, after which he started to drive away. The SUV followed, but later turned in a different direction when Johnson pulled up next to a police car on a nearby street. Johnson pointed to the SUV and told the officers that the people inside were shooting at him.

Officers gave chase as the SUV drove away from the scene. During the chase, the officers noticed that the man in the front passenger seat, who was later identified as defendant, was holding a semiautomatic rifle with a long magazine clip protruding from the bottom. The driver was holding a shotgun. At one point, the car crashed and the three occupants (defendant, the driver, and a man who was in the rear passenger seat) fled on foot. The three ultimately were apprehended.^[2]

The magazine in defendants rifle contained 22 rounds. There was an empty casing inside the chamber of the rifle. A semiautomatic handgun was found inside the car and a casing was found at the scene. A criminalist determined that the casing had been fired by the handgun.

None of the defendants presented an affirmative defense.

DISCUSSION

Defendant contends that the evidence was insufficient to establish that he used his rifle within the meaning of section 12022.5 rather than having merely possessed it. He seeks to support this assertion by noting the lack of evidence that any of the firearms were pointed at Johnson or the friend with whom Johnson was talking, or as to which of the three defendants fired a weapon. The contention is without merit.

Whether a defendant used a firearm in the commission of an . . . offense is for the trier of fact to decide. [Citation.] As [the Supreme Court has] explained: By employing the term uses [in section 12022.5] instead of while armed the Legislature requires something more than merely being armed. [Citation.] . . . Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. Use means, among other things, to carry out a purpose or action by means of, to make instrumental to an end or process, and to apply to advantage. [Citation.] (People v. Masbruch (1996) 13 Cal.4th 1001, 1007.)

The intent of the [section 12022.5] enhancement provision is to deter persons from creating a potential for death or injury resulting from the very presence of a firearm at the scene of a crime [citation], and to deter the use of firearms in the commission of violent crimes by prescribing additional punishment for each use. [Citation.] As one Court of Appeal has put it: In other words, the term use, as employed in this statute [section 12022.5] should be broadly construed, consistent with common usage, to check the magnified risk of serious injury which accompanies any deployment of a gun in a criminal endeavor. [Citation.] (In re Tameka C. (2000) 22 Cal.4th 190, 196.)

Here, Johnson noticed firearms, including what was established to be defendants loaded rifle, hanging out the window. Shots were then fired. Under these circumstances, a rational trier of fact could find beyond a reasonable doubt that defendant used a firearm within the meaning of section 12022.5. (Jacksonv.Virginia (1979) 443 U.S. 307 [99 S.Ct. 2781]; Peoplev.Johnson (1980) 26 Cal.3d 557.)

DISPOSITION

The judgment is affirmed and the trial court is ordered to correct the abstract of judgment to reflect that defendant was convicted of assault under Penal Code section 245, subdivision (b), and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J.

NEIDORF, J.^*

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^[1]Further section references are to the Penal Code.

The abstract of judgment erroneously states that defendants assault conviction was pursuant to section 245, subdivision (a)(2). We shall order the trial court to correct this clerical error. (See People v. Mitchell (2001) 26 Cal.4th 181, 185188.)

^[2]The driver and the other passenger were prosecuted as codefendants at trial. They are not parties to this appeal.

^*Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.