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Name: People v. Virgo
Case #: C066832
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/30/2013
Summary

Five of 10 attempted premeditated murder counts reversed because defendant did not directly fire upon all the officers who took cover outside his home. Virgo, a member of the “Filthy Few,” an enforcer contingent of the Hell’s Angels, assaulted a man and left him unconscious. Because Virgo was known to officers in the Sheriff’s Office to be “armed and unpredictable,” tactical units were dispatched to Virgo’s residence to arrest him. Numerous shots were fired; the officers took cover. After a standoff, Virgo surrendered. A jury convicted him of 10 premeditated attempted murder counts on various officers. On appeal he challenged the sufficiency of the evidence. Held: Reversed in part. Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act towards accomplishing the killing. Guilt of attempted murder must be separately determined as to each victim. Where a bullet is fired at a victim at close range in a manner that could have killed had the bullet been on target, the evidence is sufficient to show attempted murder. It need not be shown the defendant intended to kill a particular person, such as where a bullet is fired into a crowd with the intent to kill one of the group. However, where there are multiple possible victims, intent to kill must be proved for each count charged. Here, three of the counts were based on defendant firing a shot at three officers. Because there was no evidence separate shots were fired at each of the other officers, only one of the three convictions may stand. As for three of the other officers, no evidence showed defendant fired directly upon them.