People v. Taylor

Opinion

NICHOLSON, J. A jury convicted defendant of the following charges: count two, assault with a firearm on Darryl Lavan (Pen. Code, § 245, subd. (a)(2); further references to sections of an undesignated code are to the Penal Code); count three, attempted robbery of Shunn Oliver (§§ 664, 211); count four, assault with a firearm on Oliver (§ 245, subd. (a)(2)); and count seven, being a convicted felon in possession of a firearm (§ 12021, subd. (a)).1 The jury also found true special gun-use allegations for count two (§ 12022.5, subd. (a)) and count three (§ 12022.53, subd. (b)). Defendant was sentenced to an 18-year state prison term.

On appeal, defendant argues, inter alia, there is no substantial evidence to support his convictions for counts three and four, both involving victim [321]Oliver. Defendant also makes two constitutional challenges to section 12022.53, which provides for a mandatory 10-year term for using a weapon in specified crimes. We shall affirm the judgment.

Facts

On February 11, 1998, at approximately 11:00 p.m., victims Lavan and Oliver were walking toward Big Ben’s Burgers on Del Paso Boulevard. Defendant and another man were standing on the comer. As the victims approached, defendant shouted out to Lavan, asking if they knew each other from county jail. Lavan stopped to talk with defendant while Oliver kept walking. Lavan did not recognize defendant. According to Lavan, defendant directed Lavan to hand over his watch. Angry at defendant’s demand, Lavan approached defendant, expecting to fight. Instead, defendant pulled a gun from his waist and fired a single shot, striking Lavan in the thigh. Lavan fled in the direction of a nearby casino. When Lavan was across the street, defendant fired a second shot, again striking Lavan in the leg. Defendant then began pursuing Lavan.

Upon hearing gunfire, Oliver crouched between two parked cars. Defendant’s pursuit of Lavan ceased when he spotted Oliver. Defendant pointed his gun at Oliver, who was wearing new boots and a new jacket, and told him to “[tjake your boots and your coat off.” When Oliver unzipped his jacket, defendant noticed the necklaces Oliver was wearing and said, “Take the shit off your neck too.” Oliver was in the process of complying when a police vehicle drove past. Defendant turned and ran away.

Sacramento police officers were dispatched to the area in response to a call of shots fired. Officer Husted arrived and observed defendant discard a handgun while fleeing the area. Husted released his canine partner, who was able to apprehend defendant. Once in custody, defendant was identified by both Lavan and Oliver as their assailant. Officers located two spent rounds in the cylinder of the firearm discarded by defendant.