(Super. Ct. No. 08F10102)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Charged with attempted murder, defendant David Dale Lee was convicted by the jury of the lesser offense of attempted voluntary manslaughter. The jury found firearm use and great bodily injury allegations to be true. The jury also convicted defendant of possession of methamphetamine and possession of a firearm by a convicted felon. In bifurcated proceedings, the court sustained six prior prison term allegations.
The court sentenced defendant to state prison for an aggregate term of 25 years 10 months.
Defendant appeals. He contends that insufficient evidence supports the trial court's reason for imposition of the upper term for attempted voluntary manslaughter and that the court's reason constituted an impermissible dual use of facts. He also contends that to the extent an objection should have been raised to preserve the issue, counsel rendered ineffective assistance. We reject defendant's contentions.
In December 2008 defendant shot Elias Hernandez. At the time of the shooting, defendant lived in a mobile home next door to the home of Jeanette Khan, who provided him with electricity and food and allowed him to use her kitchen utensils and shower. Hernandez had been staying with Khan and saw defendant come into Khan's house to use the shower. Prior to the shooting, Hernandez denied ever having argued or fought with defendant. Robert Porter and his girlfriend rented a room in Khan's home.
Months before the shooting, defendant asked Khan to sell his truck for $1,000, but she only got $500 for it. She kept the money to pay some bills rather than sending it to him. Khan had not been paid for defendant's use of her home.
On December 15, 2008, Khan, Hernandez, and Porter were in Khan's home waiting for a friend to arrive. Defendant had been in and out of Khan's house, and Khan asked Hernandez to tell defendant to leave because he was spending too much time in the house. Khan had asked defendant repeatedly to leave and he would not. When Hernandez asked defendant to leave, defendant got mad and went to his mobile home.
Shortly thereafter, Hernandez went to defendant's mobile home to make sure they were "cool." He knocked on the door and when defendant opened it, Hernandez saw Lisa Bishop inside. Hernandez explained he wanted to talk to defendant but said it could wait. Defendant said they could talk right away. After the two disagreed about when to talk, Hernandez finally agreed to talk right then. Defendant went into the mobile home, shut the door, and a few seconds later came out. As defendant and Hernandez walked away from the mobile home, Hernandez asked defendant if he was "cool." Defendant responded by taking out a gun and shooting Hernandez in the thigh. Hernandez ran. Defendant fired and hit Hernandez in the buttocks twice. Hernandez fell to the ground. As he tried to get up, defendant approached and shot Hernandez once more in the tailbone. Hernandez pled with defendant not to shoot him again. Hernandez heard defendant's gun click twice more. Hernandez made his way to the house, called 911, and then collapsed.
Officers on patrol heard four gunshots, drove toward the area, and encountered Bishop and defendant. Defendant had no injuries, no ripped clothing, and was not breathing heavily. Within feet, an officer found a handgun with an empty magazine, two baggies of methamphetamine, and two baggies of marijuana. Four shell casings were found at the scene, starting about 20 feet from the mobile home and extending in a line about 48 feet long. Two of the shell casings had been fired from the handgun found, but the other two casings had insufficient markings to make a conclusive determination.
Hernandez was treated at the hospital, where he remained for two weeks and had multiple surgeries. He had to use ...