P. v. Shadden 4/24/07 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F048765

Case Date: 08/08/2007

Preview:Filed 4/24/07

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F048765 Plaintiff and Respondent, (Super. Ct. No. BF108307A) v. THOMAS JOE SHADDEN, Defendant and Appellant.

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge. Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Plaintiff and Respondent. -ooOooAngry at the mother of his children, defendant Thomas Joe Shadden produced a gun and opened fire on her unoccupied car as bystanders looked on. He also stuck an ice to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, II.B, III, IV, and V.B.
*Pursuant

pick in one of the tires. He was convicted of grossly negligent discharge of a firearm, discharging a firearm at an unoccupied motor vehicle, and being a felon in possession of a firearm. The 16-year prison sentence he received includes 10 years of recidivism-based enhancements. He now (1) challenges several aspects of the grossly-negligent-discharge and discharging-at-an-unoccupied-motor-vehicle convictions; (2) argues that evidence of threats to a witness was inadmissible; (3) requests review of the disposition of his Pitchess motion; and (4) challenges his sentence pursuant to recent United States Supreme Court decisions. We conclude there was no reversible error and affirm the judgment. We publish our holding that the owner-consent provision of the firing-at-anunoccupied-vehicle statute requires the consent of all owners, not just that of the shooter, where the shooter is one of several co-owners. The statute does not allow one co-owner to shoot up a car without the consent of the other owners. We also publish a portion of our discussion of defendant's sentencing claim under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham). Since the trial court here had discretion to impose a three-strikes sentence of 25 years to life, its imposition of upper term sentences, which were shorter, did not contravene the Supreme Court's precedents. FACTUAL AND PROCEDURAL HISTORIES Vanessa Ortiz considered herself defendant's wife, although they were not legally married and not living together. They had three children. Vanessa lived with the children and her brother, Jason Ortiz. According to Vanessa, defendant did not approve of Jason living in Vanessa's apartment with the children because Jason used methamphetamine. According to witnesses, Vanessa, Jason, and defendant all regularly used methamphetamine.

2.

One night, Jason and his friend Ruben Navarrete drove to Vanessa's apartment and parked in the carport. Vanessa drove up shortly afterward. After the three of them got out of their cars, defendant and his friend Arturo Morales drove up. Defendant was angry and began arguing with Vanessa. During the argument, defendant punctured one of the rear tires of Vanessa's car with an ice pick. Vanessa walked into the apartment building. Defendant punched Vanessa's car with his fist. Then he drew a gun and, from a distance of about six feet, fired at least four shots, shattering the window in the driver's door and making a number of bullet holes in the metal. Jason and Ruben stood nearby as defendant did these things. Other people were also nearby. When defendant was through, he and Arturo got back in the truck and drove off. The District Attorney filed a four-count information. Count 1 was discharging a firearm in a grossly negligent manner. (Pen. Code,

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