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People v. Abundio

California Court of Appeals, Second District, Fourth Division

December 4, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
JOSE ABUNDIO, Defendant and Appellant.

Filed 1/3/14 (unmodified version attached)

Los Angeles County Super. Ct. No. MA047792

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: [*]

It is ordered that the petition for rehearing, filed by appellants on January 2, 2014, is denied; and that the opinion filed herein on December 4, 2013, be modified in the following particulars:

At page 2, line 6, of the slip opinion, the sentence, “The jury also found true the special circumstance allegation that he committed the murder in the commission of a robbery, and the allegation that he used a knife” is deleted and replaced with the following:

“The jury also found true the special circumstance allegation that he committed the murder in the commission or attempted commission of a robbery, and the allegation that he used a knife.”

There is no change in the judgment.

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA047792, Lisa M. Chung, Judge.

Barbara S. Perry, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

WILLHITE, J.

In an unprovoked, premeditated attack, appellant Jose Abundio stabbed marijuana dealer Timothy Wong to death in order to rob him of marijuana appellant could not afford to buy. After appellant’s first jury deadlocked and a mistrial was declared, a second jury convicted him of first degree murder. The jury also found true the special circumstance allegation that he committed the murder in the commission of a robbery, and the allegation that he used a knife. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17), & 12022, subd. (b)(1).)[1] The trial court sentenced him to life in prison without the possibility of parole, plus one year. On appeal, he contends that his sentence constitutes cruel or unusual punishment under California Constitution, article I, section 17, and People v. Dillon (1983) 34 Cal.3d 441 (Dillon), abrogated on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1186. We disagree and affirm the judgment.

BACKGROUND

According to Kourtney Garcia, Timothy Wong’s girlfriend, Wong had been selling marijuana for about a year before he died. Before the killing, he had sold marijuana to appellant six or seven times, and there had never been any problem between them. They called each other by familiar names: appellant was “Joe, ” and Wong was “Timmy.”

On the night of the killing, December 19, 2009, around 9:00 p.m., appellant was with three friends, Josue Hernandez, Felix Martinez, and John Bowen, watching television at Bowen’s house on 171st Street in Lake Los Angeles. Appellant borrowed Hernandez’s cell phone, walked around the corner of the ...


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