People v. Richard

Opinion

ARABIAN, J.— Introduction

After a court trial, defendant and appellant Lewis Clayton Richard (appellant) was convicted of murder in the first degree (Pen. Code, § 187). It was found that appellant had personally used a firearm in the commission of the murder (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). He admitted that he had sustained three prior convictions within the meaning of Penal Code section 667, subdivision (a). On May 2, 1985, this court affirmed the judgment of conviction. On August 1, 1985, the California Supreme Court granted appellant’s petition for review. The Supreme Court transferred the case to this court on September 25, 1986, for reconsideration in light of People v. Thomas (1986) 41 Cal.3d 837, 842-844 [226 Cal.Rptr. 107, 718 P.2d 94].) We again affirm the judgment of the trial court.

Contention

“Penal Code section 667(a) cannot lawfully be applied to appellant’s case.”

[1161]Statement of Facts

The evidence introduced at trial shows that after quarreling with the victim, Sam Henry, over repairs made to appellant’s automobile, appellant left and returned 15 to 30 minutes later with a shotgun. In response to Henry’s statement, “ ‘Oh, you’re going to shoot me now,’ ” appellant responded, “ ‘Well, you don’t owe me or you think I owe you ... [11] Well, I’ll pay you.’ ” Whereupon appellant fired two shots at Henry, who died as a result of a blast to the heart.

Procedural History

Appellant was charged with murder (Pen. Code, § 187). It was further alleged that in committing the murder appellant personally used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and committed the murder, a violent felony (Pen. Code, § 667.5, subd. (c)), while on state prison parole within the meaning of Penal Code section 1203.085, subdivision (b). It was also alleged that appellant had been convicted of five prior felonies, including three second degree burglaries, within the meaning of Penal Code section 1203, subdivision (e)(4). As to the five prior felony convictions, it was further alleged that each was a violent felony for which a prior prison term was served within the meaning of Penal Code section 667.5, subdivisions (b) and (c), and had been committed while appellant was on state prison parole (Pen. Code, § 3000) within the meaning of Penal Code section 1203.085. In addition, there were allegations that each of the three second degree burglary convictions was a serious felony within the meaning of Penal Code section 667, subdivision (a).