People v. Stone

46 Cal.4th 131, 93 Cal. Rptr.3d 362 (2009)

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Nature of the Case

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Facts

Rincon drove his truck past a group of Nortenos twice. On the third pass, he stopped the truck 10 to 15 feet from the group and held up three fingers, denoting a gang sign. Stone (D) rolled down his passenger window, pulled out a gun, and fired it. The truck then left the scene. Officer Pescatore, who was about 60 feet away, observed: 'an arm come out of the passenger window, and then saw a muzzle flash and heard a gunshot.' He described the arm as 'pointing straight out the window' at a group of individuals on the grassy island in the parking lot, about four to five feet away. Joel F. testified that the gun in D's hand was 'pointed up' slightly and extended toward the group when he fired. Joel did not think defendant had pointed the gun at anyone in particular, but he said that when the gun was fired, he ducked because he was worried about being shot. Joel also expressed the belief that the gun was fired 'just to scare us. I don't really think he was trying to shoot anybody.' The jury found D guilty of one count of attempted premeditated murder. The information had alleged that Joel F. was the attempted murder victim. The court sentenced D to state prison, and he appealed. The Court of Appeal reversed the attempted murder conviction and related enhancement findings. The People (P) appealed.