P. v. Long

Filed 4/20/06 P. v. Long CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert George Spitzer, Judge. Affirmed.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Scott C. Taylor, Supervising Deputy Attorney General, and Christopher Beesley, Deputy Attorney General, for Plaintiff and Respondent.

An information charged defendant and appellant David Long (defendant) with attempted murder under Penal Code^[1] sections 664 and 187, subdivision (a) (count 1). The information also alleged that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury under section 12022.53, subdivision (d), and that defendant personally used a gun under section 12022.5, subdivision (a)(1). The information further alleged a great bodily injury enhancement under section 12022.7, subdivision (a).

A jury found defendant guilty of attempted murder and found the enhancements to be true. The trial court sentenced defendant to life with the possibility of parole for the attempted murder conviction, with a consecutive term of 25 years to life for the section 12022.53, subdivision (d), gun use enhancement. The court struck the remaining enhancements.

On appeal, defendant argues that the judgment must be reversed because: (1) the trial court improperly dismissed a juror; (2) the trial court committed prejudicial error when it misread a jury instruction; and (3) defendant's conviction for attempted premeditated murder is not supported by substantial evidence. For the reasons set forth below, we shall affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On July 2, 2003, defendant and his younger brother, Kenneth Long (the victim), had been living together for about three months in Riverside. During that time, the brothers had a volatile relationship and argued frequently. Defendant, an alcoholic, would easily become angry and aggressive when he was drinking, or when he was under the influence of drugs. The victim, an accomplished martial arts practitioner and instructor, irritated defendant because he failed to help defendant with household chores and yard work.

On July 2, 2003, the brothers argued several times. That evening, defendant went outside to do some yard work, taking a glass of rum and Coke with him. As he left the house, defendant slammed the door shut and began to yell. Defendant ranted and raved as he mowed the lawn. Hearing his brother yelling, the victim went outside to see why defendant was so angry. Defendant said he was upset because the victim was not helping with any of the household work.

When the victim went outside and saw that defendant was agitated, the victim told defendant to sober up and that he â€