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People v. Lytle3/6/2003
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
The information accused defendant Jerry Walter Lytle with murder (Pen. Code, § 187 - count 1) and discharging a firearm at an inhabited dwelling (§ 246 - count 2). The information also alleged as to both counts that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (c) and (d)), that defendant personally used a firearm (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b), and 1203.066, subd. (a)(1)), and that defendant inflicted great bodily injury (§ 1203.75). As to count 2, the information also alleged personal infliction of great bodily injury (§ 12022.7, subd. (a)) and commission of a serious and violent felony (§§ 1192.7, subd. (c)(8) and 667.5, subd. (b)(8).) The jury found defendant guilty of second degree murder on count 1, and guilty as charged on count 2. The jury further found the allegations under sections 12022.53, 12022.5, and 12022.7 to be true. The trial court granted defendant's motion for new trial as to count 1, and denied it as to count 2. The trial court sentenced defendant to state prison for 32 years to life. On appeal defendant raises issues relating to jury instructions, the denial of his motion for new trial, and the findings under sections 12022.5, 12022.53, and 12022.7. The judgment is modified by striking the section 12022.5 finding. In all other respects, the judgment is affirmed.
I. Statement of Facts
A. Prosecution Case
Defendant and the victim, Robin Perkins, lived in a small trailer in Santa Cruz. When Perkins drank alcohol, she physically and verbally abused defendant. One night, after an evening of verbal abuse, defendant left the trailer, retrieved his shotgun from his truck, aimed it through the window of the trailer, and shot and killed Perkins.
Phyllis Galvan testified that she lived in the trailer adjacent to defendant's and Perkins's. About once a week Galvan would hear Perkins shouting at defendant for about 15 to 20 minutes. Sometimes during these arguments, defendant would leave in his truck, and Perkins would yell out the window as he left. Galvan never heard defendant yell at Perkins.
At about 11:30 p.m. on May 16, 1998, Galvan heard Perkins shouting at defendant. The lights were on inside the trailer. Galvan saw defendant, who appeared to be carrying a stick by his side, walk from the truck towards the trailer. Defendant then put the object at shoulder level, and Galvan heard a loud noise. Galvan testified that defendant put the object inside the window of the trailer. After the gunshot, defendant jumped through the window of the trailer.
Officer Nicholas Richards responded to the scene at 11:37 p.m. Defendant told him that he had just shot his girlfriend. He was crying and extremely upset. Richards arrested him. According to Richards, the trailer was very small, and the bed filled the bedroom. Perkins's body was parallel to the side wall, between the wall and the bed, with her feet under the center of the window. The shotgun was lying on the bed. Richards drove defendant to the station. Defendant was crying and did not seem to be under the influence of alcohol.
Sergeant Rudy Escalante testified that he inspected the shotgun. It was loaded with two Remington double-aught buck shells, one of which was expended. There were no signs of the shotgun blast in the trailer.
Detective Richard Martinez testified that he search
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