Thursday, October 26, 2006
Court: Gun Need Not Emit Bullet to Create Liability for Personally, Intentionally ‘Discharging’ a Firearm
By TINA BAY, Staff Writer
Aiming a gun and pulling the trigger constitutes “discharging” a firearm even when the gun malfunctions and fails to project a bullet, this district’s court of Appeal held yesterday.
In affirming the convictions of a local man who attempted to shoot a deputy sheriff while on the run from a carjacking, Div. Four upheld the denial of his acquittal motion as to the special allegation that he had personally discharged a firearm in assaulting the officers.
The court said that even though a bullet never left his gun, there was enough evidence that Charles William Grandy had “personally and intentionally discharge[d]” a firearm for purposes of a 20-year sentence enhancement under Penal Code Sec. 12022.53(c).
Grandy’s confrontation with the deputy and his partner occurred in December 2004 shortly after he carjacked a man’s Cadillac from a supermarket parking lot.
At jury trial, prosecution testimony established that the deputies stopped the Cadillac at an off ramp after learning by radio that it was stolen. One deputy, Reynaldo McLaughlin, approached the driver’s side while the other, Timothy Brothers, took a position for cover behind a car halted adjacent to the Cadillac.
When the deputies ordered Grandy to show his hands, he raised a gun and pointed it over his shoulder at McLaughlin. Several gunshots sounded, although neither the deputies nor bystanders witnessed a muzzle flash from Grandy’s gun. McLaughlin was not hit.
After Brothers subsequently fired his gun at Grandy and backup arrived, Grandy exited the Cadillac and surrendered.
A firearms examiner testified that a semiautomatic pistol, found in the vehicle with its safety off, contained four live rounds of ammunition but a ruptured case was stuck in the gun’s ejection port and a bullet was lodged in its barrel.
The examiner opined that the gun malfunctioned when the cartridge case entered its firing chamber and caused an explosion that tore open the case but failed to push the bullet out of the gun. She testified that the gun fired properly after she removed the ruptured case and bullet, and that there was no evidence that any bullets had been fired from inside the Cadillac.
The jury found Grandy guilty of carjacking, robbery and assault on a peace officer, and found true the special allegation that he had personally discharged a firearm. Los Angeles Superior Court Judge Robert P. O’Neill denied Grandy’s motion for judgment of acquittal as to the gun-related allegation and, based on Sec. 12022.53(c) and other enhancement provisions, ultimately sentenced him to 184 years to life in prison.
Reversing Grandy’s sentence on other grounds, the justices concluded that the prosecution’s case-in-chief justified a Sec. 12022.53(c) enhancement.
The court interpreted subdivision (c) consistent with the reasoning of People v. Palmer (2005) 133 Cal.App.4th 1141, which had clarified the phrase “discharges a firearm” with respect to subdivision (d) of that section.
Sec. 12022.53(d) provides for a sentence enhancement where a defendant proximately causes great bodily injury to another by intentionally and personally discharging a firearm.
In Palmer, an officer broke his ankle when he dove behind the patrol car’s door to dodge bullets fired by the defendant. No bullet from the defendant’s gun hit the officer.
Nevertheless, the Court of Appeal held the defendant’s conduct of taking his gun out, pointing it and pulling the trigger all constituted a single act of “discharging” the weapon for purposes of 12022.53(d). There was no principled reason to distinguish injury suffered while taking life-saving evasive action from a direct hit by a bullet, the court said, because in both cases a defendant was equally culpable for shooting at the victim.
“A defendant should not benefit simply because he or she is a bad shot, or because the victim is fortuitously able to move out of harm’s way,” the court said.
Writing for Div. Four, Justice Nora M. Manella extended the Palmer court’s rationale to subdivision (c):
“[N]o principled distinction can be drawn within subdivision (d) between evasion-based injuries caused by a defendant who aims a gun, pulls its trigger, and projects a bullet, and evasion-based injuries caused by a defendant who engages in identical conduct, but whose gun noisily misfires and fails to emit a bullet,” Manella wrote. “Given the close link between subdivisions (c) and (d), we conclude that a defendant who aims a gun and pulls its trigger, thereby causing an explosion in its firing chamber, has discharged the gun within the meaning of subdivision (c).”
Maureen L. Fox was court-appointed appellate counsel for the defendant. Deputy Attorneys General Joseph P. Lee and Erika D. Jackson represented the state.
The case is People v. Grandy, 06 S.O.S. 5600.
Copyright 2006, Metropolitan News Company