P. v. Funk
A jury convicted appellant of the attempted, willful, deliberate, and premeditated murder of Saul Paredes (Pen. Code, 664/187)[1](count 1) and assault with a deadly weapon on Saul Paredes by means likely to produce great bodily injury ( 245, subd. (a)(1)) (count 2). The jury found true the allegation that in the commission of count 1, appellant personally used a dangerous weapon (a knife) within the meaning of section 12022, subdivision (b)(1). The jury found true the allegation that in the commission of both counts appellant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).
Prior to a court hearing on the allegations that appellant had suffered a prior serious felony conviction and a prior prison term, the prosecution moved to strike the allegations. ( 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a); 667.5, subd. (b).)
After denying appellants new trial motion, the trial court sentenced him to life with the possibility of parole on count 1. The trial court imposed a consecutive sentence of one year for the personal use of a knife and a consecutive sentence of three years for the personal infliction of great bodily injury under section 12022.7. On count 2, the trial court imposed a sentence of seven years and stayed the sentence under section 654.
Appellant appeals on the grounds that: (1) there is insufficient evidence to support his conviction for attempted premeditated murder or attempted murder in light of the uncontroverted defense expert testimony that cast reasonable doubt on his actual mental state, and his right to due process was thereby violated; (2) there was insufficient evidence to support the finding that the attempted murder was premeditated and deliberated, and appellants right to due process was violated; (3) the court used the wrong standard in denying appellants new trial motion; (4) reversal is required to correct violations of the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment that occurred when appellant was convicted of assault with a deadly weapon (count 2), since this is a necessarily included offense of attempted murder (count 1) when the latter crime is considered along with its accompanying allegations that appellant used a knife and inflicted great bodily injury; and (5) the trial court erroneously denied appellant his presentence conduct credits of 131 days.
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