People v. Jacinth CA1/3

Filed 7/12/23 P. v. Jacinth CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. A166018 GERALD STANLEY JACINTH, (Sonoma County Defendant and Appellant. Super. Ct. No. SCR-743208-1)

John Doe was standing inside the garage attached to his home when Gerald Stanley Jacinth, his brother-in-law, shot him twice at point blank range. The first bullet grazed Doe, went through the garage ceiling, and into the attic; the second entered his back, traveled through his body, and hit the rear wall of the garage. A jury convicted Jacinth of attempted murder and shooting at an inhabited dwelling. (Pen. Code, §§ 187, subd. (a), 189, 664; 246, subsequent undesignated statutory references are to this code.) The jury also found true he personally used a firearm and inflicted great bodily injury on Doe. (§§ 12022.53, subd. (d), 12022.7, subd. (a).) After denying Jacinth’s motion to strike the enhancements, the trial court sentenced him to an aggregate term of 23 years plus seven years to life in prison. On appeal, Jacinth contends the evidence was insufficient to support his conviction for shooting at an inhabited dwelling because he fired at Doe, not the dwelling. He also argues the trial court was required to dismiss his 1

firearm enhancement under section 1385 because it resulted in a sentence of over 20 years. Alternatively, he argues the court erred in concluding he was a danger to public safety when it denied the motion to strike the enhancement. We affirm. BACKGROUND On the morning of December 26, 2020, Jacinth — 75 years old — sat in his parked car across the street from Doe’s house. Doe — 77 years old — opened his garage door 42 minutes later. Doe’s wife was inside the house. Jacinth exited his car wearing a Santa hat, beard, and a Halloween mask covering his face; Doe did not recognize him. One of Jacinth’s arms was in a duffel bag that Doe believed was a sling. Jacinth tried to give Doe a package wrapped in Christmas wrapping paper, but Doe refused to take it. Doe attempted to walk away from the garage, and Jacinth blocked his path. While Jacinth stood outside the garage, he raised the duffel bag and aimed it at Doe; for his part, Doe stood just inside the garage. Growing suspicious, he swung around and used his left arm to try to block the bag. Jacinth fired a gun hidden in the duffel bag, grazing Doe’s collarbone. The bullet traveled at an upward angle, went through the garage ceiling and into the attic. Doe yelled and ran further into the garage. From outside the garage, Jacinth shot Doe again. The second shot entered Doe’s lower back, went through his body, through a container of foot powder, and hit the rear wall of the garage. Jacinth pursued Doe into the garage; his gun jammed, and he left without firing again. He drove away but was quickly arrested by police. A search of his car revealed a duffel bag with two bullet holes. The prosecutor charged Jacinth with attempted murder (§§ 187, subd. (a), 664, subd. (a)) and discharging a firearm at an inhabited dwelling (§ 246). Relevant here, the complaint alleged enhancements for his