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People v. Martinez10/31/2002
in particular, that the Legislature has determined increased punishment is justified.
As for the "minor damage" caused to the victim's truck, appellant misses the mark again. The fact that he actually struck the truck with the shots he fired as the victim sped away from appellant's murderous attempt demonstrates the dangerousness and the likelihood that either the victim or appellant's own half-sister could have been fatally injured. Examination of the particular facts of appellant's offense do not diminish his criminal culpability. Appellant's crime was not a minor one, it was highly dangerous, and was of a violent nature. (Barrera, supra, 14 Cal.App.4th at p. 1567.)
Nature of Offender
Appellant next points to his own personal characteristics, contending a 20-year mandatory sentence is excessive.
Unlike the defendant in Dillon, supra, 34 Cal.3d at page 488, appellant was not acting out of fear. Appellant's age is similarly not a factor to his benefit on his claim. At the time of his crime appellant was 21 years of age, having graduated from high school, with some vocational training. He is married and the father of two children. Admittedly, appellant's prior criminal record was minor. He had prior convictions for driving under the influence (Veh. Code, § 23152, subd. (b)), spousal abuse (§ 273.5), both from 1997, and a 1999 conviction for driving with a suspended license (Veh. Code, § 14601.5). The lack of a significant criminal record, however, is not determinative. (People v. Martinez (1999) 76 Cal.App.4th 489, 497 (Martinez).)
There is no evidence to indicate he is immature, either chronologically or emotionally, factors which weighed heavily in favor of the defendant in Dillon, supra, 34 Cal.3d at page 488. Additionally, the defendant's crime in Dillon was felony murder, which could be committed either intentionally, negligently, or accidentally.
As for appellant's mental state, Dr. Howsepian concluded in his report prepared in connection with appellant's sentencing, that appellant was malingering and was not suffering from any psychotic illness. The court acknowledged Dr. Howsepian's conclusion prior to sentencing appellant. Another significant factor in our decision is the repeated statement made by appellant immediately after being subdued and taken into custody. "When I get out of jail I'm going to do this again. And next time Andy won't recognize me when I kill him." Coupled with this is appellant's own testimony "No. I figured I was going to go to jail, but not before the chance I got to shoot myself, because I do everything I say I'm going to do. So if I intended to do anything, I'm going to do it." (Italics added.) Considering the nature of appellant and taking into account his age, prior criminality, personal characteristics, and his state of mind we cannot conclude the 20-year sentence imposed for personally and intentionally discharging a firearm during the crime of attempted murder is cruel or unusual.
Punishment for Other Serious Offenses
Appellant, relying upon Lynch, next asserts that under a proportionality review of other crimes committed in California, which are more serious, his sentence of 20 years' imprisonment for personally and intentionally discharging a firearm is suspect. Appellant then compares his 20-year sentence with the maximum sentences imposed for various offenses which result in death or serious injury: 11 years for voluntary manslaughter (§ 193, subd. (a)); 10 years for gross vehicular manslaughter (§ 191.5, subd. (c)); four years for involuntary manslaughter (§ 193, subd. (b)); nine years for arson, causing great bodily injury (§ 451, subd. (a)); and eight years for mayh
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