People v. Kuykendal CA3

I. BACKGROUND

Defendant was charged with attempted carjacking (§§ 664, 215, subd. (a)—count one)1 with the allegation that he personally used and discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b) & (c)); assault with a semi-automatic firearm (§ 245, subd. (b)—count two) with the allegation he personally used the semi-automatic firearm (§ 12022.5, subds. (a) & (d)); and being a felon in possession of a weapon (§ 29800, subd. (a)(1)—count three). The charges were based on a nighttime altercation near a homeless encampment. M.L. lived in a tent near a fence. The fence had a hole, through which people traversed. One night, as M.L. sat in his car parked by the fence, defendant approached. M.L. was acquainted with defendant; defendant owed him money. M.L. said he got out of his car and defendant immediately pointed a gun in his face, then hit him in the head with the gun. Defendant then asked M.L. about his car keys and M.L. told him they should be in the car. Defendant told M.L. he had five seconds to leave, and as M.L. walked away, he heard a gunshot. Defendant rummaged through M.L.’s car, and M.L. heard “a couple more shots.” Five to 10 minutes after M.L. initially…