Mr. Lucero, while on a meth bender, pulled a gun on an acquaintance, Mr. Silveira, and demanded Silveira open the trunk to his car, which Lucero knew contained over 18K in cash. Silveira refused and gunned his car to get away. Lucero then blasted away at the car, killing Silveira.
Lucero was convicted for felony murder and firearm enhancements under PC 12022.53(c) and (d). Lucero appealed his convictions and the Fourth District affirms.
While the opinion is lengthy, only a small portion of it is published. The issue decided in the published portion is a narrow one; do the 12022.53 enhancements require a specific intent or a general intent. Lucero argues that the trial court erred in not giving a voluntary intoxication instruction as to the 12022.53 enhancements. Since voluntary intoxication may be used to consider whether a person formed a specific intent, if the enhancements require a specific intent, Lucero has something to argue. However, since voluntary intoxication may not be considered in a determination of general intent, if the enhancements are ones of general intent, Lucero's argument is foreclosed.
The 12022.53 enhancements at issue require a person, "personally and intentionally discharges a firearm", sub(c), and "personally and intentionally discharges a firearm and causes . . . death to any other person other than an accomplice[]", sub(d).
The general rule is that when an enhancement mentions only an act, it is one of general intent. But if an enhancement describes an act along with an intent to do a further act or achieve some specific consequence(s), it is one of specific intent. Here the panel finds the 12022.53 enhancement at issue merely describe acts. Thus they require general intent.
And since voluntary intoxication may not be considered in determining whether a person formed a general intent, Lucero loses the issue.
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