Super. Ct. No. 2008024793 Ventura County
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
The crime of murder does not always require specific intent to kill. The crime of attempted murder does. CALCRIM No. 600 clearly explains that the crime of attempted murder requires the specific intent to kill. An explanation of express malice is unnecessary and likely confusing.
Sergio Jacobo Ramos appeals a judgment following conviction of attempted murder (count 1) and assault with a semi-automatic firearm (count 2), with findings of personal firearm use and discharge. (Pen. Code, §§ 664, 187, subd. (a), 245, subd. (b), 12022.5, subd. (a), 12022.53, subd. (c).)*fn1 We affirm.
FACTS AND PROCEDURAL HISTORY
In the late evening of May 18, 2008, Maria Ramos heard noises outside the family home in Ojai and saw a gray or black-colored truck. She walked outside and noticed that the windows in two of the family's vehicles had been broken. Ramos awoke her family members and then reported the vandalism to law enforcement.
After 2:00 a.m. that morning, William Kyle Hoffman escorted guests outside following a party at his Short Street residence in Oak View. He saw two vehicles parked on the opposite side of the street. He then heard gunshots "whistling" past him. He ran down the street and jumped a neighbor's backyard gate. In all, he heard seven gunshots but did not see the person firing the weapon or the weapon. The vehicles "screech[ed] away" afterwards.
Hoffman owned a gray-colored pickup truck that was parked near his home. Sheriff's deputies later found seven .22 caliber shell casings nearby. A neighbor's vehicle sustained window damage from the gunshots.
Jessica Manning was present in the Ramos home that evening. She later informed sheriff's deputies that the three Ramos brothers, including Sergio, left the home after the vandalism to the family vehicles. When they returned, Sergio stated that he had "posted up in Oak View" and shot seven times. Deputies recorded Manning's interview and the prosecutor played the recording at trial. Manning testified at trial, however, that she lied to deputies to protect her boyfriend, Jose Ramos.
On June 19, 2008, sheriff's deputies interviewed Jose Ramos. He stated that Sergio drove to Short Street and fired a gun five or six times toward a silver pickup truck similar to the truck involved in the vandalism. At trial, Jose recanted his statements.
In March 2009, sheriff's deputies arrested Jose Lopez for possession of a firearm. Lopez stated that Sergio Ramos borrowed the weapon from him in May 2008. A firearms examiner tested the firearm and concluded that it fired the shell casings found near Hoffman's Short Street residence.
The jury convicted Ramos of attempted murder (count 1) and assault with a semi-automatic firearm (count 2), and found the personal firearm use and discharge enhancements true. (§§ 664, 187, subd. (a), 245, subd. (b), 12022.5, subd. (a), 12022.53, subd. (c).) The trial court sentenced Ramos to a 27-year prison term, imposed various fines and fees, and awarded him 73 days of presentence custody credit. The court imposed but stayed sentence for count 2, pursuant to section 654.
Ramos appeals and contends that: 1) the trial court did not sufficiently instruct regarding attempted murder, and 2) ...