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The People v. Cory Wallace Fernandez

May 1, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CORY WALLACE FERNANDEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. CRF10-256)

The opinion of the court was delivered by: Butz , J.

P. v. Fernandez

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a bench trial, the trial court found defendant Cory Wallace Fernandez guilty of attempting to murder one housemate and assaulting another with a firearm, along with another offense and two firearm enhancements.*fn1 (Pen. Code, §§ 664/187, subd. (a), 245, subd. (a)(2), & former § 12021, subd. (a)(1).) It sentenced him to state prison.

On appeal, defendant contends there is insufficient evidence of his intent to kill the attempted murder victim. He also maintains that he is entitled to additional custody and conduct credit, a point the People concede. We shall affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

The parties provide lengthy summaries of the evidence at trial. We limit our account, however, to the facts relevant to defendant's argument.

The assault victim had multiple people living with him in itinerate fashion in bedrooms and sleeping on couches in the four-bedroom house. Neighbors described the atmosphere at the residence as being obnoxious, rowdy, and loud; drinking, drug ingestion, and fighting all took place. Defendant had been living there for about six months. The assault victim testified that he and defendant were "pretty good friends most of the time," though defendant's roommate testified that she heard them argue "quite a bit" and a neighbor also had heard the assault victim yelling at defendant. The attempted murder victim had known defendant for about six to eight months, and had thought that they were good friends.

On May 28, 2010, the attempted murder victim was visiting the residence, helping to put a spark plug into a four-wheeler. He had been there only a few minutes when defendant challenged him about taking defendant's firewood, which the victim admitted (saying "so what?"). The attempted murder victim then challenged defendant to "kick [the victim's] ass" and hurt him. Defendant told the victim to check out what defendant had for him. Defendant then shouldered a .22-caliber long rifle that he had been holding for about a minute and shot the attempted murder victim. (The witness did not see from where the rifle came.) The victim was six to 10 feet away and unarmed, and had not verbally or physically threatened defendant. The bullet caused his right lung to collapse and lodged in his right shoulder blade.

The attempted murder victim walked briefly into the house to look for his cell phone. When he could not find it, he came back out on the porch and sat down on a couch. He saw defendant beating the unarmed assault victim over the head with the rifle, who had also been on the porch and involved in the dispute about the firewood (but who otherwise had not provoked defendant in any manner). Although the attempted murder victim was sitting on the porch, defendant did not attack him further. Defendant threw the weapon onto a chair and told another resident to wipe the prints off of it, and then defendant "beat feet" down the driveway. An investigator found unspent .22-caliber casings on defendant's bed.

DISCUSSION

I. The Evidence of Intent to Kill Is ...


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