P. v. Lynch
Filed 7/26/12 P. v. Lynch CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW
ANTHONY LYNCH,
Defendant and Appellant.
A129440
(Sonoma County
Super. Ct.
No. SCR526473)
A
jury convicted defendant Andrew Anthony Lynch of
§ 245, subd. (a)(2)) (a lesser included offense of attempted murder with
which he was charged), shooting at an
occupied motor vehicle (§ 246), and active participation in a street
gang (§ 186.22, subd. (a)). The jury also found to be true several gang
and firearm allegations, including the allegation that defendant’s intentional
discharge of a firearm at a motor vehicle caused great bodily
subd. (d).)
Defendant
contends there is insufficient evidence to support his conviction for shooting
fired the handgun while standing at the door of a parked vehicle with the gun
extended inside the vehicle. He also
contends the victim’s gunshot wounds do not constitute great bodily injury. We
reject both contentions and shall affirm the judgment.
STATEMENT OF facts
There
was evidence at trial of the following. Defendant was a Norteño
street gang member. On the night of December 23, 2007, defendant was
drinking beer and “hanging out” at his apartment with 15 to 20 people, many of
them Norteños. Defendant told his girlfriend that he was “going to do business”
and left the apartment with two other Norteños, Dominic Andino and Misael
Gutierrez. The men, armed with a pistol and shotgun, drove for about 30 minutes
looking for rival Sureño gang members. They went to Sureño territory and saw a
parked car occupied by Latinos. Assuming the car occupants to be Sureños,
defendant and Gutierrez approached the parked car as Andino waited in the
Norteños’s car with the head lights extinguished and the engine running.
The
parked car was occupied by a driver and two passengers, one in the front seat
and one in the back. Enrique Lopez was the driver. Defendant went to the
driver’s side of the vehicle as Gutierrez stood on the passenger’s side with a
shotgun. Defendant tried to open the driver’s door and when he could not,
ordered Lopez to open it. Lopez rolled down the window and defendant asked him
if he was a Sureño. Defendant again tried opening the door and when it did not
open, pointed a pistol at Lopez. Lopez unlocked the doors on both sides of the
car.
Defendant
opened the driver’s door and pointed the pistol at Lopez and Gutierrez opened
the passenger’s door and pointed the shotgun at the passenger. Defendant
demanded that Lopez lift his shirt and show defendant Lopez’s belt. Lopez said,
“no, I don’t [got] nothing.” Gutierrez, referring to the passenger, asked
defendant if he should “blow this mother fucker’s head off.” Defendant, while
standing outside the car, then fired the pistol three or four times at Lopez,
seated about a foot away inside the car.
Lopez
was struck by two bullets. One bullet struck him in the shoulder and went out
the back and another struck him in the abdomen and remained lodged there. Lopez
was taken to the hospital where he had x-rays and other tests performed. The
physician who treated Lopez decided not to remove the bullet lodged in the
abdomen because he felt surgery can cause more damage than leaving a bullet in
place. Lopez stayed overnight at the hospital for observation and was released
the next day with a prescription for pain medication.
Following
the return of the guilty verdicts,
name="_ftnref2" title="">[2]
the court sentenced defendant to a prison term of 30 years to life. Defendant
filed a timely notice of appeal.
discussion
Defendant
was convicted of violating section 246, which provides, as relevant here: “Any
person who shall maliciously and willfully discharge a firearm at an
. . . occupied motor vehicle” is guilty of a crime. The evidence here
establishes that defendant was standing outside a parked car with open doors
when he shot the driver who was seated about a foot away inside the car.
Defendant argues that the evidence suggests the gun was inside “the periphery
of the vehicle” when he fired the gun and that he, therefore, did not discharge
a firearm at a vehicle within the
meaning of section 246. Defendant contends that it is the location of the
firearm, not the shooter, that is dispositive, so that section 246 does not
apply if the firearm extends into the vehicle.
The
contention was recently rejected by the California Supreme Court in an opinion
issued after defendant filed his opening
brief on appeal. (People v. Manzo (2012)
53 Cal.4th 880.) The defendant in Manzo
was standing outside a parked car when he reached his arm into a vehicle and
shot a passenger. (Id. p. 885.)
Our high court affirmed the conviction, finding that “the Legislature intended
section 246 to apply to a person standing outside an occupied motor vehicle and
shooting into it, even if the gun has crossed the plane of the vehicle.” (
was standing outside the vehicle when he fired shots into it, was properly
convicted of violating section 246.
The
evidence also supports the jury’s finding that defendant’s discharge of a
firearm at a motor vehicle caused great bodily injury. (§ 12022.53, subd.
(d).) Great bodily injury, within the meaning of the statute, “means a
significant or substantial physical injury.” (Ibid., § 12022.7, subd. (f).) Lopez’s injuries meet this
standard. Lopez was struck by two bullets, one that passed through his shoulder
and another that remained lodged in his abdomen. Great bodily injury findings
have been upheld where the victim suffered gunshot wounds similar to those
suffered by Lopez. (People v. Wolcott (1983)
34 Cal.3d 92, 106-108; People v. Mendias (1993)
17 Cal.App.4th 195, 205-206.)
In
arguing that Lopez did not suffer great bodily injury, defendant relies on the
treating physician’s testimony that Lopez’s shoulder injury was without
“significant” joint or muscle damage and that the abdominal wound did not
damage internal organs. But a finding of great bodily injury does not require
proof that the victim suffered “ ‘permanent,’ ‘prolonged’ or ‘protracted’
disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750.) Nor is the jury’s
finding of great bodily injury undermined by the physician’s classification of
the abdominal wound as “superficial.” The physician explained that he meant the
term in a technical sense to signify that the bullet did not penetrate
abdominal structures. The term superficial was used as “a physical description
of where the tract [of the bullet] itself was located,” not to minimize the
injury. The physician clarified that the gunshot wound was “superficial to the
abdominal cavity” but was not a superficial wound: “I think it’s hard to
describe a gunshot wound as a superficial wound.” The evidence, viewed as a
whole, supports the jury’s finding of great bodily injury.
>
disposition
The
judgment is affirmed.
_________________________
Pollak,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] All further section references are to
the Penal Code.
name="_ftn2" title="">[2] The jury found Gutierrez not guilty of
the crimes with which he was charged.
