THE PEOPLE v. ROBERT SILVA GONZALES

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ROBERT SILVA GONZALES, Defendant and Appellant.

B228212

Decided: January 13, 2012

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Robert Silva Gonzales appeals from the judgment entered following his convictions by jury on two counts of assault with a semiautomatic firearm (Pen.Code, § 245, subd. (b);  counts 1 & 2) each with personal use of a firearm (former Pen.Code, § 12022.5, subd. (a)), count 3 – evading an officer with willful disregard (Veh.Code, § 2800.2, subd. (a)), count 4 – possession of a firearm by a felon (former Pen.Code, § 12021, subd. (a)(1)), and count 5 –possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)) with admissions he suffered a prior felony conviction (Pen.Code, § 667, subd. (d)), a prior serious felony conviction (Pen.Code, § 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen.Code, § 667.5, subd. (b)).  The court sentenced appellant to prison for 38 years.   We affirm the judgment.

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 6:10 p.m. on January 18, 2010, undercover Los Angeles Police Officers Pablo Soto and Camacho were on patrol in an unmarked GMC Arcadia SUV and stopped for a red light at Third and Western.   Camacho was the driver and Soto was in the front passenger seat.   Both officers had firearms in their waistbands under their shirts.   Soto, looking around, saw that appellant was the driver of a Ford Explorer SUV which already had stopped at the intersection and which was to the right of the Arcadia.   The driver's door of the Explorer was about one or two feet in front of the front passenger door of the Arcadia.

Appellant looked at Soto and asked “what the fuck” was Soto looking at.   Soto asked what appellant was looking at.   Appellant asked, “How do you know I'm looking at you?”   Appellant seemed more upset.   Soto became worried.   Soto replied, “Well, how do you know I'm looking at you?”

Appellant turned away and reached down.   Soto could not see to what area appellant had reached.   Soto could see appellant's face, his shoulder area, and up to the midsection of appellant's body, but Soto could not otherwise see into the Explorer.   Soto heard the racking of a semiautomatic handgun.   The racking of a gun loaded a bullet in the gun's chamber.   After Soto heard the sound, appellant turned back, pointed a semiautomatic gun at Soto, and asked, “What the fuck are you looking at now?”   Soto was extremely worried.   Soto testified, “I pretty much lifted my hands and [said], ‘Hey, I'm cool,’ and then the light turned green miraculously, and [appellant] proceeded to drive away.”

The officers followed appellant, who later made a U-turn and stopped in front of the Arcadia.   Soto exited the Arcadia, displayed his badge, pointed his gun at appellant, and yelled that Soto was a police officer.   Appellant ducked, drove away, and an extended high-speed pursuit ensued.   During the pursuit, appellant committed numerous Vehicle Code violations and endangered the public.   The pursuit ended when the Explorer collided with another vehicle.

Los Angeles Police Officer Harris Cho, who participated in the pursuit, saw appellant throw a handgun out the driver's side window of the Explorer after the collision.   The gun, a nine-millimeter semiautomatic handgun, had a bullet in its chamber and six bullets in the gun's magazine, and the gun was ready to be fired.   Soto arrived at the scene and appellant told him, “ ‘I'm sorry for doing that to you, sir.   I'm having a bad day.’  “ Police recovered from appellant's person a baggy containing 7.1 grams net weight of methamphetamine.

2. Defense Evidence.

In defense, appellant, who twice had been convicted of burglary, testified as follows.   Appellant was a felon who knew he was not supposed to have a gun, but he carried one for self-protection.   On January 18, 2010, he drove to Melrose and Western and obtained narcotics.   About 6:00 p.m., he was returning home when Camacho drove up in an SUV and stopped to the left of appellant.   Soto gave appellant a “real hard look.”   Appellant did not know the occupants of the SUV were police officers.

Appellant aggressively asked Soto what Soto was looking at.   After a verbal altercation between appellant and Soto, Camacho reached for Camacho's waistband, lifted his shirt so appellant could see Camacho's gun, and released a strap on top of Camacho's gun.   Neither Camacho nor Soto verbally threatened appellant or pointed a gun at him.

After Camacho's actions, appellant was afraid for his life.   He unbuckled his seat belt and removed his loaded gun from his waistband.   The gun was fully operational and its magazine contained seven bullets.   As soon as the gun cleared his waist, appellant put the gun on his lap.   Appellant denied pointing his gun at anyone, denied “rais[ing] the gun out the [Explorer's] window,” and denied trying to show the gun to Soto and Camacho.

Appellant asked Camacho and Soto what they wanted to do, Soto indicated he wanted no problems, and appellant drove away with his gun on his lap when the light turned green.   Appellant tried to drive home and, when he heard sirens, he continued driving because he had a gun and narcotics and did not want to go to jail.   When appellant crashed his vehicle, he threw the gun out the window.

ISSUES

Appellant claims (1) there is insufficient evidence supporting his convictions for assault with a semiautomatic firearm, (2) the trial court erroneously refused to instruct on brandishing a firearm as a lesser included offense of assault with a semiautomatic firearm, and (3) this court should review the sealed record of the in camera proceedings pertaining to his Pitchess 1 motion.

DISCUSSION

1. Sufficient Evidence Supported Appellant's Convictions on Counts 1 and 2.

Appellant claims there is insufficient evidence supporting his convictions for assault with a semiautomatic firearm (hereafter, assault with a firearm).   We reject his claim.

“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  (Pen.Code, § 240.)   The court used CALCRIM No. 875 to instruct the jury on the elements of assault with a firearm, and there is no dispute that that instruction correctly stated the law.

CALCRIM No. 875 stated, in relevant part, “The defendant is charged in Counts 1 and 2 with assault with a semiautomatic firearm․  To prove that the defendant is guilty of this crime, the People must prove that:  [¶] 1. The defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person ;  [¶] 2. The defendant did that act willfully;  [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone ;  [¶] 4. When the defendant acted, he had the present ability to apply force with a semiautomatic firearm to a person;  and [¶] 5. The defendant did not act in self-defense.”  (Italics added.)

The mental element of assault requires only an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.  (People v. Williams (2001) 26 Cal.4th 779, 782, 790.)

The gravamen of appellant's argument is “the prosecution presented no evidence to prove, or even suggest, that the mere act of pointing a gun at someone would ‘probably result in the application of force’ to that person, or that appellant ‘was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force.’  “ (First italics added.)   Appellant essentially maintains a defendant's “mere act of pointing a gun” at someone, and the defendant's awareness of that act, are insufficient evidence of the first and third previously enumerated elements of assault with a firearm as set forth in CALCRIM No. 875.   There is no need to decide that issue.

“To point a loaded gun in a threatening manner at another (especially if accompanied by threats to shoot, ․ ) constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury.”   (People v. Miceli (2002) 104 Cal.App.4th 256, 269, italics added;  cf.   People v. Hartsch (2010) 49 Cal.4th 472, 507–508 [“[defendant] concedes that pointing a gun at someone in a menacing manner is sufficient to establish the requisite mental state [for assault with a deadly weapon].”].) A defendant who points a loaded gun in a threatening manner at someone satisfies the first and third previously enumerated elements of assault with a firearm.

There was substantial evidence from the People's case as follows.   Soto and appellant were in their respective vehicles which were stopped near each other at a red light.   Camacho and Soto were in the driver's seat and front passenger seat, respectively, of the Arcadia, and appellant was in the driver's seat of the Explorer.   A verbal altercation ensued between Soto and appellant, during which appellant was agitated and used profanity.

Appellant subsequently turned away and reached down, and Soto heard the racking of a handgun, a sound indicating a bullet had been chambered in the gun.   Appellant then pointed his loaded and fully operational semiautomatic gun at Soto and asked, “ ‘What the fuck are you looking at now?’  “ A jury reasonably could have concluded from these facts that appellant was threatening and intending to shoot Soto because Soto had been looking at appellant and/or that appellant was threatening and intending to shoot Soto if he did not stop looking at appellant.   The above facts alone provided sufficient evidence of assault with a firearm.

In addition, however, after Soto later identified himself as a police officer, appellant fled and later threw the gun out the window of the Explorer, acts which the jury reasonably could have concluded evidenced consciousness of his guilt.   Appellant later expressly apologized to Soto for what appellant had done to him.   There was sufficient evidence of the first and third previously enumerated elements of assault with a firearm.   The fact Soto was able to deescalate the situation does not compel a contrary conclusion.   We hold there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant committed assault with a firearm upon Soto and Camacho (counts 1 & 2, respectively).2

2. The Court Did Not Err by Failing to Instruct on Brandishing of a Firearm.

Appellant claims the trial court erred by failing to instruct sua sponte on brandishing a firearm (Pen.Code, § 417, subd. (a)(2)) as a lesser included offense of assault with a firearm (counts 1 & 2).   We disagree.

Penal Code section 417, subdivision (a)(2), provides, in relevant part, “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows[.]”  However, a violation of this subdivision, i.e., the offense of brandishing a firearm, is not a lesser included offense of assault with a firearm.  (People v. Steele (2000) 83 Cal.App.4th 212, 218 (Steele ), review den.   Dec. 13, 2000;  cf.  People v. Escarcega (1974) 43 Cal.App.3d 391, 393, 396–400 (Escarcega ) [brandishing a deadly weapon is not a lesser included offense of assault with a deadly weapon];  contra, People v. Wilson (1967) 66 Cal.2d 749, 764.)   A person can commit assault with a firearm from a concealed location or behind the victim's back, neither drawing nor exhibiting the firearm in a rude, angry, or threatening manner, nor using it in a fight or quarrel.  (Steele, supra, 83 Cal.App.4th at p. 218;  Escarcega, supra, 43 Cal.App.3d at p. 398.)

Even if brandishing a firearm were a lesser included offense of assault with a firearm, appellant was not entitled to a brandishing instruction.   Appellant would have been entitled to such an instruction only if there had been substantial evidence he was guilty only of such brandishing.   However, according to the People's evidence, appellant committed assault with a firearm upon Soto and Camacho, and any brandishing was part and parcel of that assault.   According to the defense evidence, appellant never committed brandishing.   According to appellant, he never drew or exhibited his gun in a rude, angry, or threatening manner, or used it in a fight or quarrel.   The defense evidence was that when the gun cleared appellant's waist, he simply put the gun in his lap.   He denied pointing the gun at anyone, denied raising the gun out the window, and denied trying to show the gun to Soto and Camacho.   Based on the evidence in this case, as to counts 1 and 2, appellant was guilty, if at all, of assault with a firearm;  therefore, he was not entitled to an instruction on brandishing a firearm as a lesser included offense of assault with a firearm (counts 1 & 2).

3. The Trial Court Fulfilled Its Responsibilities Under Pitchess.

a. Pertinent Facts.

On April 19, 2010, appellant filed a pretrial discovery motion pursuant to Pitchess, seeking various information in the personnel files of Soto and Camacho.   The reporter's transcript for May 13, 2010, reflects that, on that date, the court stated in open court that it had conducted an in camera hearing regarding the motion.   The minute order for that date reflects, “Pitchess hearing is conducted in-camera.   Frederick [Jamison is] present from the Los Angeles Police Department discovery section.  [¶] The court reviews the files.  [¶] The proceedings are reflected in the notes of the official court reporter, which are ordered sealed.  [¶] Discoverable information is found by the court.”  (Some capitalization omitted.)   The reporter's transcript for May 13, 2010, also reflects that, on that date, the court stated in open court that it would order the disclosure of the names, addresses, and telephone numbers of three potential witnesses.

b. Analysis.

Appellant asks this court to review the sealed record pertaining to his Pitchess motion to determine whether said record contains additional discoverable materials.

Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records.  (People v. Samayoa (1997) 15 Cal.4th 795, 827;  People v. Memro (1995) 11 Cal.4th 786, 832.)   We have reviewed the contents of the sealed transcript of the May 13, 2010, in camera hearing on appellant's Pitchess motion.   The transcript constitutes an adequate record of the trial court's review of any document(s) provided to the trial court during the in camera hearing, and said transcript fails to demonstrate that the trial court abused its discretion by disclosing only the information pertaining to the above mentioned three potential witnesses.  (Cf. People v. Samayoa, supra, at p. 827;  see People v. Mooc (2001) 26 Cal.4th 1216, 1228–1230, 1232.)   The trial court fulfilled its responsibilities under Pitchess.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess )..  FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess ).

FN2. In light of our analysis, there is no need to reach the issue of whether, under all of the circumstances in this case, appellant committed assault with a firearm upon Soto and Camacho even before appellant pointed his gun..  FN2. In light of our analysis, there is no need to reach the issue of whether, under all of the circumstances in this case, appellant committed assault with a firearm upon Soto and Camacho even before appellant pointed his gun.

KLEIN, P. J. CROSKEY, J.