James F. Iwasko, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1312051)
The opinion of the court was delivered by: ` Yegan, J.
CERTIFIED FOR PUBLICATION
Cesar Vallejo, a recidivist felon, is not supposed to have a firearm. Nevertheless, he possessed a .40 caliber semiautomatic pistol and unfortunately, he used it. He appeals from the judgment entered after a jury convicted him of attempted voluntary manslaughter (Pen. Code, §§ 664, 192, subd. (a)), a lesser included offense of attempted murder;*fn1 driving in willful or wanton disregard for safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)); maliciously discharging a firearm from a motor vehicle at another person (former § 12034, subd. (c), now § 26100, subd. (c)); and possession of a firearm by a convicted felon. (§ 12021, subd. (a)(1).) As to the offenses of attempted voluntary manslaughter and discharging a firearm from a motor vehicle, the jury found true allegations that appellant had inflicted great bodily injury. (§ 12022.7, subd. (a).) As to the offense of discharging a firearm from a motor vehicle, the jury found true an allegation that appellant had personally and intentionally discharged a firearm causing great bodily injury. (§ 12022.53, subd. (d).) The trial court sentenced appellant to prison for 29 years, 4 months to life.
Appellant contends that (1) the prosecutor committed prejudicial misconduct during closing argument; (2) the trial court misinstructed the jury; (3) the trial court erroneously denied his motion for a new trial based on misconduct by the jury foreman; (4) as applied to him, section 12022.53, subdivision (d) violates substantive due process and equal protection; and (5) his sentence constitutes cruel and unusual punishment under the federal and California constitutions. We affirm.
After a day of construction work appellant, Thomas Gomez and Steve Swaim went to a wedding reception and drank alcohol. On the way home they stopped at the Spearmint Rhino bar in Santa Maria. They parked next to a car occupied by five persons including the victim, Johnny Fabela. Gomez spat onto a window of the car. This led to a fistfight between Gomez and the occupants of the car. Gomez threw the first punch. Appellant and Swaim got out of the truck. Appellant was holding a firearm. A woman who had exited the car started kicking appellant. Appellant called the woman a "bitch," pushed her, and ran back to the truck. The woman testified, "Everybody was just fighting each other."
Mike McClain was driving his van when he saw the fight. He parked the van, grabbed a baseball bat from under the backseat, and walked toward the fight. McClain hit Gomez and Swaim in the head with the bat.
Appellant, Swaim, and Gomez got inside the truck. Swaim was in the back seat. Gomez was in the front passenger seat. Appellant was in the driver's seat. Fabela ran toward the open front passenger window. Appellant leaned over, put his arm out the open window, and shot Fabela in the lower chest. Fabela started hitting Gomez through the open window. Fabela testified: "I seen him [appellant] pull it [the gun] out again, cocked it, and that's when I ran off, because I didn't want to get hit again. . . . I heard rounds passing by me as I was running off." At least four shots were fired.
Appellant drove away in the truck. He was pursued by the police in a high-speed chase. At one point, appellant's estimated speed was approximately 100 to 110 miles per hour. The truck eventually crashed into a wall, and the occupants fled. Appellant was arrested later that evening.
Appellant testified as follows: After the fight started, he saw "all these people jumping [Gomez] and beating [Gomez] up, and [he] got out of the driver's side, . . . reached under the seat, and . . . grabbed the weapon." Appellant loaded the gun and approached the combatants. Appellant cocked the gun and said, "Leave him alone. We don't want any trouble." Appellant was suddenly attacked by two women. Appellant "walked backwards toward [his] truck and jumped in." "Somebody came out of somewhere from the side and bashed [Swaim's] head in with a bat."
Appellant was alone inside the truck. He "was terrified. [He] thought that there was [sic] two carloads of gang members that were going to jump us and maybe kill one of us . . . ." Appellant "reached for the weapon, put it out through the [open front passenger] window, and shot four shots into the ground." Appellant intended "to shoot some warning shots and maybe scare the people away so they could stop attacking Thomas [Gomez] and Steve Swaim." Appellant's "whole intention was for Mr. McLain to stop bashing Steve's head in with a bat." When appellant fired the shots, he did not see Fabela.
Alleged Misconduct by Prosecutor
Appellant contends that, during closing argument, the prosecutor committed prejudicial misconduct by repeatedly stating that appellant had "brought a gun to a fistfight." Appellant acknowledges that his counsel did not object to this characterization of his conduct. Appellant has therefore not preserved the issue for appellate review. "To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury. [Citation.]" People v. Brown (2003) 31 Cal.4th 518, 553.)
Appellant argues that counsel was ineffective for "failing" to object to the prosecutor's argument. We disagree. The prosecutor's argument was fair comment upon the evidence. A " 'prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence.' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 768.) On direct examination, appellant testified, "I seen all these people jumping him [Gomez] and beating him up, and I got out of the driver's side, I reached under the seat, and I grabbed the weapon." On cross-examination, the prosecutor asked what these people were doing to Gomez. Appellant replied, "Hitting him with their fists and pounding on ...