People v. Jacinth CA1/3 ( 2023 )

Filed 7/12/23 P. v. Jacinth CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A166018
GERALD STANLEY JACINTH, (Sonoma County
Defendant and Appellant. Super. Ct. No. SCR-743208-1)
John Doe was standing inside the garage attached to his home when
Gerald Stanley Jacinth, his brother-in-law, shot him twice at point blank
range. The first bullet grazed Doe, went through the garage ceiling, and into
the attic; the second entered his back, traveled through his body, and hit the
rear wall of the garage. A jury convicted Jacinth of attempted murder and
shooting at an inhabited dwelling. (Pen. Code, §§ 187, subd. (a), 189, 664;
246, subsequent undesignated statutory references are to this code.) The jury
also found true he personally used a firearm and inflicted great bodily injury
on Doe. (§§ 12022.53, subd. (d), 12022.7, subd. (a).) After denying Jacinth’s
motion to strike the enhancements, the trial court sentenced him to an
aggregate term of 23 years plus seven years to life in prison.
On appeal, Jacinth contends the evidence was insufficient to support
his conviction for shooting at an inhabited dwelling because he fired at Doe,
not the dwelling. He also argues the trial court was required to dismiss his
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firearm enhancement under section 1385 because it resulted in a sentence of
over 20 years. Alternatively, he argues the court erred in concluding he was
a danger to public safety when it denied the motion to strike the
enhancement. We affirm.
BACKGROUND
On the morning of December 26, 2020, Jacinth — 75 years old — sat in
his parked car across the street from Doe’s house. Doe — 77 years old —
opened his garage door 42 minutes later. Doe’s wife was inside the house.
Jacinth exited his car wearing a Santa hat, beard, and a Halloween mask
covering his face; Doe did not recognize him. One of Jacinth’s arms was in a
duffel bag that Doe believed was a sling. Jacinth tried to give Doe a package
wrapped in Christmas wrapping paper, but Doe refused to take it. Doe
attempted to walk away from the garage, and Jacinth blocked his path.
While Jacinth stood outside the garage, he raised the duffel bag and
aimed it at Doe; for his part, Doe stood just inside the garage. Growing
suspicious, he swung around and used his left arm to try to block the bag.
Jacinth fired a gun hidden in the duffel bag, grazing Doe’s collarbone. The
bullet traveled at an upward angle, went through the garage ceiling and into
the attic. Doe yelled and ran further into the garage. From outside the
garage, Jacinth shot Doe again. The second shot entered Doe’s lower back,
went through his body, through a container of foot powder, and hit the rear
wall of the garage. Jacinth pursued Doe into the garage; his gun jammed,
and he left without firing again. He drove away but was quickly arrested by
police. A search of his car revealed a duffel bag with two bullet holes.
The prosecutor charged Jacinth with attempted murder (§§ 187,
subd. (a), 664, subd. (a)) and discharging a firearm at an inhabited dwelling
(§ 246). Relevant here, the complaint alleged enhancements for his
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attempted murder offense — that Jacinth personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)), personally used a firearm
(§ 12022.53, subd. (b)), and personally inflicted great bodily injury on Doe
(§ 12022.7, subd. (a)). For the offense of shooting at an inhabited dwelling,
the complaint alleged Jacinth personally inflicted great bodily harm on Doe
(§ 12022.7, subd. (a)), and that he had personally and intentionally
discharged a firearm, which caused great bodily injury to Doe (§ 12022.53,
subd. (d)). In addition, it alleged aggravating factors for sentencing purposes:
the crime involved great violence or other acts indicating a high degree of
cruelty, viciousness, or callousness; the victim was particularly vulnerable;
and the manner in which the crime was carried out indicates planning,
sophistication, or professionalism.
A jury found Jacinth guilty of both offenses. It also found each of the
firearm enhancements and great bodily injury enhancements true. It further
found the above-identified aggravating factors true. At sentencing, the trial
court denied Jacinth’s motion to strike his enhancements under section 1385.
It acknowledged there were multiple enhancements that could result in a
sentence of over 20 years, a mitigating factor weighing greatly in favor of
dismissing the enhancement. (§ 1385, subd. (c)(2)(C).) But after referencing
the significant evidence at trial Jacinth was holding a grudge against Doe,
the ruse of giving Doe a present, Doe’s vulnerability, and the use of a firearm,
the court determined Jacinth posed an extreme danger to the public as well
as Doe. Dismissing the enhancement, the court concluded, was not in the
interest of justice or public safety. The court sentenced Jacinth to an
aggregate term of 23 years plus seven years to life — seven years to life for
the attempted murder; 20 years for the firearm enhancement; and three
years for the great bodily injury enhancement. (The court stayed the
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sentence for count two — an aggregate term of 10 years plus 25 years to
life — pursuant to section 654.)
DISCUSSION
Jacinth challenges his conviction for shooting at an inhabited dwelling
and makes multiple arguments regarding the denial of his motion to strike
his firearm enhancement. We address each argument in turn.
Jacinth initially contends the evidence was insufficient to support his
conviction for shooting at an inhabited dwelling because he shot at Doe, not
his garage. After reviewing the record in the light most favorable to the
judgment to determine whether the jury could have found the essential
elements of the crime, we conclude there was substantial evidence —
“evidence that is reasonable, credible, and of solid value” — supporting the
verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Relevant here, maliciously and willfully discharging a firearm at an
inhabited dwelling house or occupied building is a felony. (§ 246.) An
attached garage can be considered an occupied building. (People v. Adams
(1982) 137 Cal.App.3d 346, 355.) Shooting at an inhabited dwelling house or
occupied building is a general intent crime. (People v. Overman (2005)
126 Cal.App.4th 1344, 1356 (Overman).) The statute does not require a
specific intent to strike the dwelling or building — “section 246 is not limited
to shooting directly at an inhabited or occupied target.” (Id. at pp. 1355–
1356.) “[I]t proscribes shooting either directly at or in close proximity to an
inhabited or occupied target under circumstances showing a conscious
disregard for the probability that one or more bullets will strike the target or
persons in or around it.” (Id. at p. 1356.)
That Jacinth targeted Doe, and not his house, is thus of no moment
when assessing culpability under section 246. (Overman, supra, 126
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Cal.App.4th at p. 1356; People v. Cruz (1995) 38 Cal.App.4th 427, 432
[rejecting argument defendant is not liable under § 246 because he targeted
the victim who was inside the building, not the building itself].) People v.
Stepney (1981) 120 Cal.App.3d 1016 does not alter this conclusion. There the
defendant entered a home and, while inside, shot at a television. (Id. at
p. 1018.) The court concluded the defendant did not violate section 246
because he intentionally and directly fired a gun “within the dwelling” rather
than “ ‘at an inhabited dwelling house.’ ” (Stepney, at pp. 1018, 1021, fn. 5.)
But the court expressly limited this decision to circumstances when a firearm
is discharged within a dwelling. (Id. at p. 1021.) Jacinth was not within the
garage when he shot at Doe — he was standing on the driveway and fired two
shots at Doe, who was standing inside the garage. Given Jacinth’s location
while firing the shots, liability for a section 246 offense is proper.
Substantial evidence supports the jury’s conclusion that Jacinth was
aware his gunshots could strike the garage, Doe’s house, or persons in and
around either, and he was “consciously indifferent to that result.” (People v.
Chavira (1970) 3 Cal.App.3d 988, 993.) Though Jacinth did not engage in a
“fusillade of shots directed primarily at persons standing close to a dwelling,”
he fired at Doe who was in close proximity to the occupied building. (Id. at
p. 993; Overman, supra, 126 Cal.App.4th at p. 1356.) Targeting Doe, at close
range, in his garage did not reduce the probability the bullets would strike an
occupied building or persons in and around it. (Overman, at p. 1356.) To the
contrary, it increased it. The record demonstrates Jacinth’s gun discharged
upward after Doe tried to defend himself. The first bullet grazed Doe’s
collarbone and traveled through his garage ceiling and into his attic. When
Doe fled further into the garage, Jacinth shot him again. That bullet hit the
back of Doe’s garage after traveling through his body. A jury could
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reasonably conclude targeting a victim at close range made it foreseeable a
bullet could ultimately hit a nearby wall.
Jacinth next contends section 1385 obligated the trial court to dismiss
his firearm discharge enhancement because it resulted in a sentence of over
20 years. People v. Mendoza (2023) 88 Cal.App.5th 287 considered and
rejected this precise argument, and we agree with that court’s reasoning.
Section 1385, subdivision (c)(1) states, “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so.” Subdivision (c)(2)
provides, “[i]n exercising its discretion under this subdivision, the court shall
consider and afford great weight to evidence offered by the defendant to
prove” the presence of a statutorily enumerated mitigating circumstance.
Subdivision (c)(2) continues: “Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would endanger public
safety.” (Italics added.) “ ‘Endanger public safety’ means there is a likelihood
that the dismissal of the enhancement would result in physical injury or
other serious danger to others.” (Ibid.)
The mitigating circumstance in section 1385, subdivision (c)(2)(C)
exists when “[t]he application of an enhancement could result in a sentence of
over 20 years. In this instance, the enhancement shall be dismissed.”
Jacinth contends the phrase “the enhancement shall be dismissed” obligates
the trial court to dismiss the firearm enhancement even if dismissal would
endanger public safety. We disagree. Although the word “shall” frequently
indicates a mandate, the phrase must be read in context of the entire statute,
not in isolation. (People v. Mendoza, supra, 88 Cal.App.5th at pp. 295–296.)
The statute’s language and structure make clear that dismissal is only
mandatory if, after giving great weight to the mitigating factor and exercising
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its discretion, the court determines dismissal would be in the interests of
justice and would not endanger public safety. (Id. at p. 296.) The “statute
does not appear to give the court discretion, let alone a mandatory duty, to
dismiss an enhancement if doing so would endanger public safety.” (Id. at
p. 296, fn. 4.)
In sum, the trial court was not required to strike Jacinth’s 20-year
firearm enhancement given its finding that dismissal of the enhancement
would endanger public safety.
Finally, Jacinth contends the trial court improperly concluded that
dismissing the firearm enhancement would endanger public safety. The
court, he argues, failed to assess the danger he would pose at the time he
completed his sentence absent the enhancement rather than the danger he
posed at the time of sentencing. Moreover, Jacinth argues the evidence
established he only posed a danger to Doe, not the public at large. We
disagree. There was no abuse of discretion in the court’s ruling. (People v.
Carmony (2004) 33 Cal.4th 367, 373.)
The trial court based its conclusion that Jacinth was dangerous to
public safety on evidence concerning his lengthy grudge against Doe. The
evidence showed Jacinth had a dispute with Doe twenty years prior about
housing investments and living arrangements for Jacinth’s elderly father.
Years before the actual shooting, Doe and his wife obtained a restraining
order against Jacinth after he threatened to shoot and kill Doe. And, in a
recorded jail call, Jacinth gloated to his son about shooting Doe. These
circumstances, the court observed, illustrate the persistence of Jacinth’s
grudge even after the shooting. Instead of limiting its assessment of the
threat Jacinth posed at the time of sentencing, the court noted Jacinth’s
grudge would continue through his sentence and “presumably beyond.”
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Given the length and intensity of the grudge against Doe, it was not
irrational to conclude Jacinth’s danger to Doe and the public would continue
beyond his release from prison if the enhancement were dismissed. (People v.
Mendoza, supra, 88 Cal.App.5th at p. 298.)
The record further supported the court’s conclusion that dismissing the
enhancement would result in a likelihood of “physical injury or other serious
danger” to the public, not just Doe. (§ 1385, subd. (c)(2).) Though directed at
Doe, Jacinth discharged his firearm into an occupied building and risked
serious injury to others. (Cf. People v. Anderson (1990) 221 Cal.App.3d 331,
338.) Use of a costume, the ruse of delivering a Christmas package to get
close to the victim, and surveilling Doe’s residence before the shooting all
demonstrated Jacinth posed an extreme danger. (Cf. Cal. Rules of Court,
rule 4.421(a)(8) [planning, sophistication, or professionalism in committing
the crime is an aggravating factor].) That Jacinth would be in his 80s when
released from prison if the firearm enhancement were dismissed does not
diminish the danger posed to the public. Jacinth was 75 years old when he
shot Doe. The court observed shooting a firearm “does not require a high
degree of physical fitness.” Based on the totality of the evidence, the court’s
finding that dismissing the enhancement would endanger public safety was
not “so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A166018
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