P. v. Learmont













Filed 10/5/10 P. v. Learmont CA4/2











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 >



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

THE PEOPLE, Plaintiff and Respondent, v. JUSTIN LEARMONT, Defendant and Appellant.

E050450 (Super.Ct.No. FVI023287) OPINION

APPEAL from the Superior
Court of San Bernardino
County. Eric M. Nakata,
Judge. Affirmed.

Lynelle K. Hee, under appointment by
the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and
Respondent.

I

INTRODUCTION

On June 6, 2008, a first amended
information charged defendant and appellant Justin Learmont with premeditated,
attempted murder on Patrick Gardner under Penal Code^[1] sections 664, and 187, subdivision (a) (count
1); assault with a firearm on Cliffton
Fenoff under section 245, subdivision (a)(2) (count 2); and assault with a
deadly weapon on Patrick Gardner under section 245, subdivision (a)(1) (count
3). The information also alleged that,
in the commission of counts 1 and 2, defendant personally used a firearm within
the meaning of sections 12022.53, subdivisions (b), (c) and (d) (count 1), and
12022.5, subdivision (a) (counts 1 & 2).

On August 22, 2008, the trial court granted defendant's
motion under section 995 to dismiss count 3.
On December 8, 2009,
defendant pleaded guilty to attempted
murder without the premeditation finding under sections 664 and 187,
subdivision (a) (count 1), and assault with a firearm under section 245,
subdivision (a)(2) (count 2). Defendant
also admitted that he personally discharged a firearm causing great bodily
injury in the commission of count 1 under section 12022.53, subdivision
(d). As part of the plea agreement,
defendant entered in a waiver under People
v. Vargas (1990) 223 Cal.App.3d 1107 (Vargas
waiver).

Following the plea, the trial court
sentenced defendant to a total term of 35 years to life composed of nine years
for count 1, 25 years to life for the firearm enhancement, plus a consecutive
one-year term for count 2 (one-third the middle term).

Defendant was released on his own
recognizance, and execution of the sentence was suspended on the condition
defendant comply with the Vargas
conditions which included, among other things, that defendant abstain from
alcohol and appear for the resentencing hearing on January 12, 2010. The plea provided for a reduced sentence of
20 years if defendant complied with the Vargas
conditions.

On January 7, 2010, the trial court revoked defendant's own
recognizance status and issued a warrant for his arrest based on information
that defendant had violated the terms of his Vargas waiver. Defendant
failed to appear for sentencing on January
12, 2010. Defendant was
arrested and appeared in custody on February
3, 2010. On March 9, 2010, the trial court found
that defendant violated the terms of his Vargas
waiver and imposed the previously-executed sentence of 35 years to life.

On March 19, 2010, defense counsel filed a notice of appeal on behalf of defendant. On March 24, the notice was amended to
indicate the appeal followed a guilty plea and was based on the sentence or
other matters not affecting the validity of the plea.

II

STATEMENT OF FACTS^[2]

On December 31, 2005, about 7:00
p.m., Patrick Gardner was playing cards with friends at a bar,
Behind the Shoots, in Lucerne Valley. Later, defendant arrived at the bar and
joined the card game. Thereafter,
defendant and Gardner began to argue; Gardner
tried to punch defendant. Gardner then
grabbed defendant, laid on top of him, and pressed his forearm on defendant's
throat while yelling racial slurs. The
fight ended shortly thereafter.
Defendant and Gardner went outside to talk things out; they apologized
to one another and hugged. Gardner
returned to the bar alone and began a new card game with Cliff Fenoff.

About 45 minutes later, defendant
returned to the bar. Gardner
overheard defendant talking on the phone; defendant stated he wanted Gardner
dead. Gardner
stood about three feet from defendant and asked defendant what he was talking
about. They began to argue again. At some point, defendant turned as though he
was walking away, then turned back around and fired two shots at Gardner. The first shot truck Gardner
in the chest and the other shot grazed Fenoff.
Defendant left the bar immediately after the shooting. Gardner
was airlifted to Arrowhead Regional
Medical Center
where he underwent three surgeries. Both
defendant and Gardner were drunk during the initial confrontation and shooting.

The following morning, Benny Parish
received a phone call from defendant, asking for a ride. Parish told defendant that the police were
looking for him and advised defendant to turn himself in. Defendant stated that he â€