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People v. Garduno6/7/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant Nick J. Garduno appeals from the judgment entered after a jury convicted him of several crimes of domestic violence. He claims that the evidence was insufficient to support his conviction of attempted murder and that he was prejudiced at trial by the wrongful admission of expert testimony on battered women's syndrome. We disagree and affirm.
STATEMENT OF PROCEDURE
On March 27, 2000, defendant was charged by amended information with count 1: attempted murder (Pen. Code, §§ 664, subd. (a)/187); count 2: assault with a firearm (§ 245, subd. (a)(2)); counts 3 and 4: inflicting corporal injury on a spouse (§ 273.5, subd. (a)). The information also alleged personal use of a firearm (§ 12022.5, subd. (a)(1)), causing great bodily injury (§ 12022.7, subd. (d)), and personal use of a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) & (d)).
On April 21, 2000, the jury found defendant guilty on all counts and found all allegations to be true.
On June 27, 2000, the trial court sentenced defendant to seven years on count 1 and 25 years to life on the gun use allegation as to count 1. The midterm sentences imposed on counts 2 and 3 were stayed, and a consecutive sentence of one year was imposed on count 4, for a total term of eight years plus 25 years to life.
STATEMENT OF FACTS
Viewed in accordance with the usual rules on appeal (People v. Osband (1996) 13 Cal.4th 622, 690), the evidence established: On November 8, 1998, defendant Nick Garduno and his wife Elena Garduno had been married about a month and lived in San Martin in his mother's house with his mother and siblings. About 7:15 a.m., the Santa Clara County Sheriff's Department received a call to respond to a shooting incident at the residence. As Deputy Sheriff Wilson arrived, he encountered Elena Garduno coming out of the house, holding her bleeding side. She asked if the ambulance was there and said her husband had accidentally shot her. She denied knowing where the gun was. After the ambulance arrived and the paramedics attended Elena, Deputy Wilson saw defendant coming out of the house. Defendant was extremely concerned about his wife and stated he had accidentally shot her. When asked about the gun, defendant responded that he had thrown it in the house, but did not know where.
Deputy Cheryl Hill then took charge of defendant outside while other deputies entered the house to search for the gun. Defendant continually asked her if he was going to be in trouble and told her the shooting was an accident. He said he knew he was going to be arrested and put in jail. When Deputy Hill asked about the gun, he eventually told her he would show her where it was. They walked to the back bedroom and defendant told Hill the gun was in the crawl space under the house. He said his wife told him to throw the gun under the house.
Another deputy retrieved the gun, which had the cylinder out and an expended round beside it. Several deputies searched the living room where the shooting had taken place. Two bullet holes were found in the floor and two spent slugs were booked into evidence. Deputy Hill found two live rounds next to the sofa; another was found by another deputy. Hill noticed two gunshot holes in the fireplace wall, but based on statements by the victim and defendant, she did no
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