P. v. Bursiaga
A jury convicted defendant Thomas Cesar Bursiaga of first degree murder (Pen. Code, 187, subd. (a); 189)[1]and found true the special circumstance allegation that he discharged a firearm from a motor vehicle with intent to inflict death ( 190.2, subd. (a)(21)). The jury also found true allegations that defendant intentionally and personally discharged a firearm and killed the victim ( 12022.53, subd. (d)), and that he committed the crime for the benefit of a criminal street gang ( 186.22, subd. (b)). Defendant was sentenced to state prison for life without possibility of parole plus a consecutive term of 25 years to life for the firearm discharge enhancement. The gang enhancement was stayed. Among the fines and fees imposed was a $10,000 restitution fine suspended unless parole is revoked. On appeal, defendant contends (1) his mistrial motions were erroneously denied, (2) the firearm discharge enhancement must be stricken because it is effectively a lesser included offense of the special circumstance of murder by discharging a firearm from a motor vehicle with intent to inflict death, and (3) the suspended restitution fine must be stricken; the Attorney General concedes this last point. Court modify the judgment as to the latter point and otherwise affirm.
Comments on P. v. Bursiaga