People v. Bernal CA2/2

FACTS AND PROCEDURAL HISTORY

Defendant and his 15-year-old nephew visited a taco stand. They exchanged words and punches with Juan Medina (“Medina”), one of the stand’s employees, but eventually left. They later returned, but this time Defendant brought a shotgun and his nephew brought a knife. Medina had since tucked a BB gun into his apron. Upon arriving, Defendant drew his shotgun, Medina fled, and Defendant shot him in the back. An unknown shooter shot Defendant’s nephew in the chest with a .38- or .357-caliber bullet. Medina lived; the nephew did not. The People charged Defendant with (1) the attempted murder of Medina (Pen. Code, §§ 664, 187);1 and (2) the murder of his nephew, on the theory that Defendant’s provocative act of shooting at Medina set in motion the chain of events resulting in his nephew’s death (§ 664). The jury found Defendant’s acts were not premeditated, and accordingly found him guilty of the attempted (but not premeditated) murder of Medina, and the second (but not first) degree murder of the nephew. The court imposed a sentence of 35 years to life on the second degree murder charge, based on 15 years for the murder plus 20 years for a firearm…