P. v. Sheppard

Filed 2/9/07  P. v. Sheppard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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.  Carl E. Davis, Judge (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)  Affirmed with directions.

            Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Susan Miller, Deputy Attorney General, for Plaintiff and Respondent.

After a struggle, defendant Robert Earl Sheppard, Jr. shot Richard Grandberry (Grandberry or victim) in the back, resulting in Grandberry suffering a collapsed lung.  At trial, defendant argued he was acting in self-defense against an enemy he long feared.  The jury rejected the defense, finding defendant guilty of attempted murder (Pen. Code,^[1] §  664/187, subd. (a)), being a felon in possession of a handgun (§ 12021, subd. (c)(1)), and unlawfully carrying a loaded firearm on his person in public.  (§ 12031, subd. (a)(2)(D).)  The jury also found that in the commission of the attempted murder, defendant personally inflicted great bodily injury upon another person (§§  12022.7, subd. (a) & 1192.7, subd. (c)(8)), and personally and intentionally discharged a firearm, proximately causing great bodily injury to another person.  (§§  12022.53 subd. (d) & 1192.7 subd. (c)(8).)  

On appeal, defendant contends:  (1) the prosecutor committed misconduct; (2) there was insufficient evidence of premeditation and deliberation; (3) his 33-year sentence constituted cruel and unusual punishment; and (4) the abstract of judgment incorrectly reflects a sentence of 34 years.  We agree with the parties' stipulation that the abstract of judgment incorrectly indicates a 34-year sentence, which should be corrected to reflect the correct sentence of 33 years.  In all other aspects however, we find no error and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

For 14 years, 5 months, and 11 days, defendant held a long-simmering grudge against the victim.  In 1989, Grandberry's sister accused defendant of raping her.  Upset by the news, Grandberry grabbed defendant out of a vehicle, forced him into his vehicle, and drove him to a field where he beat him up. 

On February 27, 2004, the victim was helping his close friend, Forrest Pellum (Pellum), move a freezer to the curb for bulk pickup.  As the two were moving the freezer, defendant saw the victim, made a squealing U-turn and parked in front of Pellum's home.  Defendant was familiar with Grandberry's car, which was parked in front of the residence, because he had seen the victim in that car three or four times previously. 

Once he had seen Grandberry, defendant removed a gun from a box located in the vehicle's hatchback, retrieved the magazine clip from the glove compartment, inserted the clip into the handle, and stuffed the loaded gun into his waistband before exiting his vehicle.  Although defendant claimed he was afraid of Grandberry, he nevertheless went to visit the Pellum home because he thought his cousin from Oregon was in town. 

After speaking with Pellum's father for several minutes, defendant approached Pellum and Grandberry and asked Grandberry, â€