People v. Avalos CA3

Filed 5/27/14 P. v. Avalos CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C073626

Plaintiff and Respondent, (Super. Ct. No. TF036374A)

v.

FREDDY AVALOS,

Defendant and Appellant.

A jury found defendant Freddy Avalos guilty of assault with a firearm and shooting at an occupied vehicle and found he used and intentionally and personally discharged a firearm, inflicting great bodily injury, but acquitted him of attempted premeditated murder and attempted manslaughter. (Pen. Code, §§ 245, subd. (a)(2), 246, 664/187, subd. (a), 664/192, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d), 12022.7,

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subd. (a).)1 The trial court sentenced him to a total prison term of 30 years to life, and he timely appealed. On appeal, defendant contends the trial court erred in failing to instruct the jury on a lesser offense, improperly responded to the jury’s request for clarification of intent, and imposed a cruel and unusual sentence. Disagreeing, we shall affirm. FACTS On February 18, 2011, in a fit of road rage, defendant fired a gun multiple times at a truck that had hit and disabled his vehicle, shooting the driver as well as the truck. Defendant told Detective Timothy Bauer that he had been driving a car involved in a crash with a pickup truck. The truck’s driver sped through a red light, hit defendant’s car, and then left the scene. Defendant’s car was inoperable, but he told his two friends to chase the truck because it “seemed like [the truck’s driver] was trying to leave the scene.” But, after stopping briefly down the street, the truck came back toward defendant and then “everything just went crazy.” He knew there had been gunshots but denied owning a gun, though he had fired one at a shooting range a couple of weeks earlier--a .45-caliber pistol like the one recovered from the crime scene. Eventually, defendant admitted to Bauer that he had been carrying the gun in his car. He was angry because he was a hard-working man, he needed his car for commuting to work, and the truck driver (who was probably drunk) was trying to get away, so he tried to shoot the truck’s tires out as it passed. He then ran “like hell, just trying to get rid of [the gun].” The People’s additional evidence was consistent, although the victim claimed he had not run the red light. The victim--who in fact had been intoxicated--was shot once into the back left shoulder, with the bullet lodging in the middle of his back, where it