People v. Logan

FLEMING, J.

As a consequence of activity on three different occasions Logan was convicted of first degree robbery (Pen. Code, §§ 211, 211a), attempted robbery (Pen. Code, §§ 211, 664), and four counts of assault with intent to murder (Pen. Code, § 217). From a sentence to consecutive terms on all counts, he has appealed.

1. Gerald Ferguson, a bar owner, was held up by Logan and two other men on December 30. Logan fired several shots at Ferguson, saying “I don’t care whether I have to shoot you or what, I’ve got five to life to go for this. ’ ’ Logan also fired at a beer salesman, wounding him, and fled in Ferguson’s ear with $7,000. The evidence amply supported Logan’s conviction for robbery.

2. The attempted-robbery count and one count of assault with intent to murder were based on the holdup on January 13 of Alexander Pimienta, a restaurant owner, who identified Logan as the man who came into the kitchen of his restaurant and said “This is a holdup.” When Pimienta laughed, Logan fired a shot into the concrete floor and demanded that Pimienta open the safe. The latter walked toward the dining room, and Logan then shot him in the upper leg and told him to crawl over and open the safe. Pimienta refused to do so. Logan then unsuccessfully attempted to open the cash register, and finally left without getting any money.

Logan contends that his assault on Pimienta showed no evidence of an intent to murder. Intent to murder is a question of fact to be determined from the evidence in the same manner as any other finding. ‘ ‘ The nature of the assault, especially the weapon used and the manner in which it was used, the actual consequences of the assault, including the nature, seriousness, and location of the wound, as well as consequences likely to follow, . . . are among the circumstances that may support a finding that the assault was made

[798]

with intent to commit murder.”

(People

v.

Becerra,

223 Cal.App.2d 448, 450 [35 Cal.Rptr. 808], quoting 25 Cal.Jur. 2d, Homicide, § 165, pp. 678-679.) Here, it is apparent from the circumstances of the assault, including the firing of a shot into the upper leg of the victim at close range, that Logan acted with a callous indifference to human life. As the trial court said, “the circumstances of the shooting as revealed by the evidence do indicate a wanton, malicious and malignant heart, from which legal malice aforethought may readily be inferred. ’ ’