PEOPLE v. MARTINEZ (1981)

Defendant and appellant Thomas Martinez, Jr., appeals from the judgment of the Superior Court of Santa Clara County entered after a jury found him guilty of violating Penal Code sections 245, subdivision (a) (assault with a deadly weapon), 12021, subdivision (a) (possession of a concealable firearm by a felon), 417 (brandishing a weapon, a misdemeanor), 242 (misdemeanor battery) and 594 (misdemeanor vandalism).   Appellant was sentenced to state prison for the upper term of four years on the assault with a deadly weapon charge and for an additional year because of his prior felony convictions.   The court imposed a concurrent term on the possession of a firearm charge.   Punishment on the misdemeanor counts was stayed pursuant to Penal Code section 654.   Appellant contends on appeal that (1) prosecution failed to prove he had the present ability to commit an assault with a deadly weapon;  (2) testimony concerning appellant's affiliation with gangs was improperly elicited;  (3) the trial court had a sua sponte duty to give CALJIC No. 2.50;  (4) appellant was entitled to a free transcript of the entire trial in order to prepare and argue his motion for a new trial;  and (5) appellant was improperly sentenced.   We have determined that the sentence must be modified but in all other respects the judgment should be affirmed.

At the time of the incident in question, appellant rented a room from Marie Ramon in a house in San Jose, California.   Appellant resided in this room with his common-law wife, Adriana, and their infant child.   Marie Ramon resided in the house with her future husband Manuel Mendoza.   For convenience, Ms. Ramon will be referred to as Mrs. Mendoza inasmuch as she and Manuel Mendoza were married at the time of trial.

Mrs. Mendoza testified that on August 8, 1970, appellant returned home from work at approximately 5:30 p. m. and sat outside drinking from a quart bottle of beer and talking to another boarder.   Appellant entered the house at approximately 8:30 p. m. and went to the room he shared with Adriana.   While Mrs. Mendoza was watching television with Mr. Mendoza, she heard appellant and Adriana yelling in the next room.   Mrs. Mendoza knocked on their door and the door was opened by appellant.   When Mrs. Mendoza inquired what had “happened,” appellant told her not to interfere and that he wanted his child.   Mrs. Mendoza asked appellant to leave the house and not to return until he had “calmed down.”   Appellant followed Mrs. Mendoza into the kitchen.   Mrs. Mendoza testified that appellant said “he was going to break whatever he wanted to in the house because the child was there.”   Mrs. Mendoza told appellant that she was going to call the police if he did not calm down.

At this point Mrs. Mendoza requested Mr. Mendoza to call the police.   Appellant picked up a catsup bottle and a beer bottle from the kitchen table and threw them at Mr. Mendoza, who was in the hall attempting to place the phone call.   Neither of the bottles hit Mr. Mendoza.

Mrs. Mendoza further testified that after appellant threw the bottles, he took a gun out of the right-hand pocket of his pants and bullets out of his left-hand pocket.   Appellant attempted to load the gun.   Mrs. Mendoza did not know whether in fact appellant was successful in his effort to load the gun.   Appellant appeared to be nervous and angry.   Mrs. Mendoza stated while appellant was trying to load the gun, his hands were moving fast and he dropped some bullets.   Appellant pointed the gun at Mrs. Mendoza.   Mrs. Mendoza stated “the gun clicked, ․ but it didn't go off.”   Appellant pushed Mrs. Mendoza aside and pointed the gun at Mr. Mendoza.   Again the gun “clicked” but did not fire.   Appellant returned the gun to his pocket, struck Mr. Mendoza with his hand, went outside and threw a bottle at the house.   Mrs. Mendoza believed that the police arrived at approximately 9:15 p. m., which was about 15 minutes after appellant had left the house.   Mrs. Mendoza testified that after appellant left, she found four bullets on the kitchen floor.¹

Mrs. Mendoza further testified that, at approximately 2:30 in the morning, appellant knocked on the door and Mrs. Mendoza answered.   Appellant told Mrs. Mendoza that he was going to return with a gang called La Familia or the Mafia and that the gang would burn down the house.   Subsequent to the incident in question, appellant telephoned Mrs. Mendoza three times.   In the first conversation which occurred on October 31, 1978, appellant said, “one day he was going to get out and everything would be arranged, ․”  The second and third conversations took place in the early part of November, and in each of these conversations appellant told Mrs. Mendoza not to mention the fact that he had a gun.

Mr. Mendoza also testified regarding the events that occurred on August 8, 1978.   Mr. Mendoza returned home between 3:30 and 4:30 p. m. and began drinking beer.   Between approximately 3:30 p. m. and the time of the incident in question, Mr. Mendoza consumed 12 sixteen-ounce cans of beer.   Mr. Mendoza's testimony surrounding the episode under consideration is similar to his wife's testimony.   However, Mr. Mendoza testified that he thought appellant only threw one bottle at him while he was on the telephone.   Apparently because Mr. Mendoza had his back to the kitchen while he was in the hall placing the telephone call to the police, he did not see appellant attempt to load the gun.   However, Mr. Mendoza testified that when he got off the phone, appellant was pointing a gun at him.   He heard a “clicking noise,” but the gun did not go off.   Mr. Mendoza also testified that appellant struck him in the face causing him to fall down.

Mr. Mendoza described the gun appellant pointed at him as a black revolver with a short barrel.   Mr. Mendoza testified that appellant offered to sell him the gun approximately a week before the incident.   Appellant told Mendoza the gun was a .38 revolver and that the gun was in working condition.

Appellant testified in his own behalf.   On August 8, 1978, appellant arrived home at approximately 5 p. m., but left after about 15 minutes because dinner was not ready.   Appellant visited a friend and returned to the house around 7 p. m.   Mr. Mendoza was drunk by this time and began to caress the hair of appellant's common-law wife, Adriana.   A minor argument ensued between appellant and Mr. Mendoza.   Appellant and Adriana went into their room and began to argue between themselves about whether they should move out of the house.   About 10 minutes later Mr. and Mrs. Mendoza came to their room and Mr. Mendoza inquired, “ ‘What's going on?’ ”   Mr. Mendoza then pushed appellant and appellant pushed him in return.   The two men continued to push each other until Mr. Mendoza hit appellant with his fist.   At this point the fight deteriorated into a hitting match.   Meanwhile Mrs. Mendoza tried to stop the fight;  however, when she was unsuccessful, she began to scratch appellant.   Appellant testified at this point Mr. Mendoza grabbed a large screwdriver and “swung” it at appellant in a “stabbing motion.”   Appellant threw two bottles at Mr. Mendoza and eventually succeeded in escaping through the back door.   Appellant ran around to the front of the house and threw another bottle at Mr. Mendoza, who was now on the front porch threatening to kill appellant.

Appellant returned about 15 minutes later and found his belongings on the sidewalk.   Appellant picked up his belongings and departed without speaking to any one inside the house.   Appellant stated that thereafter he never returned to the house.   Appellant denied exhibiting a gun during the August 8 incident.   Appellant stated he made one telephone call to the Mendozas after August 8, 1978.   During the telephone conversation he asked the Mendozas why they had lied and told the police he had a gun.

Present Ability

Appellant contends his conviction of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) must be reversed because the prosecution failed to prove beyond a reasonable doubt that appellant had the present ability to commit the crime.   Specifically, appellant is asserting that no evidence “ ‘of ponderable legal significance’ ” was introduced at trial to show the gun that appellant pointed at Mr. Mendoza was loaded and operable.

 In order for a defendant to be convicted of simple assault or assault with a deadly weapon, the defendant must have the present ability “to commit a violent injury on the person threatened, in the manner in which the injury is attempted to be committed.”  (People v. Sylva (1904) 143 Cal. 62, 64, 76 P. 814;  see also People v. Orr (1974) 43 Cal.App.3d 666, 671–672, 117 Cal.Rptr. 738;  People v. Ranson (1974) 40 Cal.App.3d 317, 321, 114 Cal.Rptr. 874;  People v. Pena (1972) 25 Cal.App.3d 414, 428, 101 Cal.Rptr. 804, disapproved on other grounds in People v. Duran (1976) 16 Cal.3d 282, 292, 127 Cal.Rptr. 618, 545 P.2d 1322;  People v. Mosqueda (1970) 5 Cal.App.3d 540, 543–544, 85 Cal.Rptr. 346;  People v. Simpson (1933) 134 Cal.App. 646, 651, 25 P.2d 1008.)   Pointing an unloaded gun at another person with no effort or threat to use it as a bludgeon, does not constitute assault with a deadly weapon because the actor does not have the present ability to inflict a violent injury in the manner in which the injury is attempted.  (People v. Orr, supra, at p. 672, 117 Cal.Rptr. 738;  People v. Mosqueda, supra, at p. 544, 85 Cal.Rptr. 346.)   To state this same principle in different words, a gun used as such is only considered a deadly weapon if it is capable of being fired.  (People v. Mosqueda, supra, at p. 544, fn. 1, 85 Cal.Rptr. 346;  People v. Livingston (1970) 4 Cal.App.3d 251, 256, 84 Cal.Rptr. 237;  People v. Roshid (1961) 191 Cal.App.2d 692, 694, 12 Cal.Rptr. 794.)   However, a gun with only one cartridge or bullet in it is a deadly weapon.  (See Pittman v. Superior Court (1967) 256 Cal.App.2d 795, 798, 64 Cal.Rptr. 473;  People v. Vaiza (1966) 244 Cal.App.2d 121, 125, 52 Cal.Rptr. 733;  People v. Pearson, (1957) 150 Cal.App.2d 811, 816, 311 P.2d 142.)   That is, a person has the present ability to commit an assault with a deadly weapon with a partially loaded gun.  “ ‘Present’ can denote ‘immediate’ or a point near ‘immediate.’ ”   (People v. Ranson, supra, at p. 321, 114 Cal.Rptr. 874.)   In Ranson, the court held that appellant had the “present ability” to commit an assault although “the top cartridge [of the rifle held by appellant] that was to be fired was at an angle that caused the gun to jam.”   The court in Ranson reasoned that appellant had the present ability to commit an assault because there “was evidence from which the trial court could infer that appellant knew how to take off and rapidly reinsert the clip.”  (Id., at p. 321, 114 Cal.Rptr. 874.)

 Whether a defendant had the present ability to commit an assault is a question of fact for the jury.  (People v. Orr, supra, 43 Cal.App.3d 666, 672, 117 Cal.Rptr. 738;  People v. Pearson, supra, 150 Cal.App.2d 811, 820, 311 P.2d 142.)   The question for the jury to determine in the instant case was whether or not the gun appellant pointed at Mr. Mendoza was loaded.   (Id.)  The prosecution may meet its burden on the issue of a defendant's present ability to commit an assault “by circumstantial evidence.”  (People v. Orr, supra, 43 Cal.App.3d at p. 672, 117 Cal.Rptr. 738.)

Appellant, in arguing that substantial evidence does not support a finding that the gun appellant pointed at Mr. Mendoza was loaded and operable, relies upon the following points:  (1) the gun was never recovered;  (2) Mrs. Mendoza testified she did not know whether appellant was successful in his attempt to load the gun;  (3) Mr. Mendoza did not see appellant attempt to load the gun;  (4) the type of gun appellant pointed at the Mendozas could hold only five or six bullets, and yet the combined testimony of Mrs. Mendoza and various police officers indicate that as many as six bullets might have fallen to the floor during appellant's attempt to load the gun;  and (5) both Mr. and Mrs. Mendoza testified that they heard two “ ‘clicks' ” which “demonstrates that the gun was either unloaded or even inoperable.” ²

 Appellant's contention, when viewed carefully, is simply a request that this court reweigh the evidence.   We are bound by the substantial evidence rule which requires this court to view the evidence in the light most favorable to respondent (the People) and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.  (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649;  People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659;  People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)  “The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.  [Citation.]  The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.”   (People v. Reilly, supra, at p. 425, 90 Cal.Rptr. 417, 475 P.2d 649;  see also People v. Johnson (1980) 26 Cal.3d 557, 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)   In performing our task we must look at the entire record to determine whether substantial evidence is present to support the judgment—we may not merely look at isolated bits of evidence selected by the People.   (People v. Johnson, supra, at p. 577, 162Cal.Rptr. 431, 606 P.2d 738.)   Evidence to be substantial must be “ ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value.’ ”  (People v. Johnson, supra, at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738.)  “Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction.   Suspicion is not evidence;  it merely raises a possibility, and this is not a sufficient basis for an inference of fact.”  (People v. Redmond, supra, at p. 755, 79 Cal.Rptr. 529, 457 P.2d 321;  see also People v. Thompson (1980) 27 Cal.3d 303, 324, 165 Cal.Rptr. 289, 611 P.2d 883;  People v. Blakeslee (1969) 2 Cal.App.3d 831, 837, 82 Cal.Rptr. 839.)

 There is substantial evidence in the record in the instant case to support the jury verdict on the assault with a deadly weapon charge.   Circumstantial evidence supports the jury's implied finding that the gun appellant pointed at Mr. Mendoza was operable and loaded.   A week before the incident in question, appellant offered to sell the gun to Mr. Mendoza at which time appellant stated the gun was in working condition.   The jury could reasonably deduce from the testimony that appellant attempted to put bullets in the gun and thereafter pointed the gun at the Mendozas and pulled the trigger, and that the gun was in fact loaded.   The fact that the gun did not fire when appellant pulled the trigger merely suggests that the gun was only partially loaded.   As noted above a person may be convicted of assault with a deadly weapon if he points a partially loaded gun at a victim.   Appellant's assertion that six bullets were found on the floor is based on conflicting and confusing testimony.   Mrs. Mendoza testified at one point she only recovered four bullets.   Furthermore, appellant's conclusion that if six bullets were recovered, the gun must not have been loaded, is based on the premise that appellant withdrew from his pocket precisely as many bullets as would fit his gun.   There is no evidence in the record that supports the premise that appellant had only six bullets in his pocket.

Appellant's Affiliation with a Gang

Appellant contends that the prosecutor improperly elicited testimony from Mrs. Mendoza concerning appellant's alleged affiliation with the Nuestra Familia and/or the Mexican Mafia.   Mrs. Mendoza testified that appellant returned to the house the morning (at 2:30 a. m.) after the evening in question and told her that he was going to return with a “gang” called La Familia or the Mafia and that the “gang” would burn down the house.³

Before Mr. or Mrs. Mendoza testified defense counsel moved to exclude evidence regarding any threats appellant may have made to the Mendozas after the incident.   Defense counsel argued that such evidence was irrelevant or that such evidence should be excluded under Evidence Code section 352 because its probative value was outweighed by its potential prejudicial effect.   The district attorney responded by citing CALJIC No. 2.06, which provides that evidence of a defendant's attempt to intimidate a witness could be considered as a circumstance tending to show a consciousness of guilt.   The district attorney stated he wished to introduce evidence that appellant threatened to burn down the Mendozas' house.   The district attorney did not mention that appellant had stated he would employ the help of Nuestra Familia or the Mexican Mafia to execute his threat.   The trial judge ruled that evidence of threats could be admitted, but stated defense counsel could renew her objection under Evidence Code section 352 at a later point.⁴

Almost immediately after defense counsel moved to exclude evidence of any threats, she stated that the probation report identified appellant as a member of the Dogtown Youth Gang.   Defense counsel moved “that there be no reference to any kind of gang anywhere along the line.”   The district attorney responded, “I have no intention at this time to bring forth anything on the Dogtown Gang or anything like that.”   The trial judge told the prosecutor, “If and when you feel that it might become relevant, Mr. Berglund, you may make an offer of proof outside the hearing of the jury and we will review it at that time.”

Appellant in contending the prosecutor improperly elicited testimony concerning appellant's affiliation with a gang states:  “The District Attorney must have known that when he embarked upon the line of questioning concerning the alleged threats that testimony concerning gang affiliation and gang reference would be forthcoming.   That the District Attorney was not anxious to have such evidence excluded is demonstrated by his subsequent attempts to elaborate on those gang contacts.   Thus, in this context, the eliciting of the testimony without first making the offer of proof as outlined by the trial judge, was improper;  the irrelevant and prejudicial testimony was improperly placed before the jury.”

 The People assert that appellant cannot raise this contention on appeal because “defense counsel made no objection or motion to strike the testimony on the grounds now advanced by appellant.”   Although a specific objection is not contained in the record, it is difficult to imagine that defense counsel asked to approach the bench for any reason other than to discuss the reference to gang affiliation given her earlier motion to exclude any “reference to any kind of gang․”  Since defense counsel had made the earlier motion, she was not required to make an objection on the record in front of the jury which only would have emphasized the point.

The People next contend that the trial court's comments requesting the prosecutor to make an offer of proof before introducing any evidence regarding gangs, “clearly referred to the matter then under discussion—whether evidence of appellant's membership in the ‘Dogtown Gang’ was relevant to any issue in the case.”   While the People may be technically correct, the People's interpretation of the trial court's comments overlooks the spirit of the ruling.   The trial court's comments indicate that if felt that any mention of appellant's gang affiliation might be prejudicial and, therefore, the court wanted to consider the probative value of the testimony before ruling on its admissibility.   However, the trial court apparently did consider this issue at the conference at the bench.   Thus, the issue becomes did the trial court err in ruling the prosecution could introduce the fact that appellant mentioned the name of two gangs in his threat.

 Evidence of gang membership “is not per se” inadmissible, but in “order to be admissible it must meet the test of relevancy.”  (People v. Perez (1981) 114 Cal.App.3d 470, 477, 170 Cal.Rptr. 619;  In re Wing Y. (1977) 67 Cal.App.3d 69, 77–78, 136 Cal.Rptr. 390;  see also People v. Remiro (1979) 89 Cal.App.3d 809, 841, 153 Cal.Rptr. 89, cert. den. 444 U.S. 876, 937, 100 S.Ct. 160, 288, 62 L.Ed.2d 104, 197;  People v. Manson (1976) 61 Cal.App.3d 102, 155–156, 132 Cal.Rptr. 265, cert. den. 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed. 382.)  Evidence Code section 210 defines relevant evidence as “evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”   Evidence that a defendant attempted to suppress evidence against himself by the intimidation of a witness is relevant evidence because the evidence indicates a consciousness of guilt on the part of the defendant.   (People v. Hannon (1977) 19 Cal.3d 588, 599, 138 Cal.Rptr. 885, 564 P.2d 1203;  People v. Weiss (1958) 50 Cal.2d 535, 554, 327 P.2d 527;  People v. Slocum (1975) 52 Cal.App.3d 867, 887, 125 Cal.Rptr. 442, cert. den. 426 U.S. 924, 96 S.Ct. 2635, 49 L.Ed.2d 379;  see also Evid. Code, § 413.)   The evidence concerning the threat was indisputably relevant.   Whether the threat had to be “sanitized” to delete any reference to specific gangs was an issue directed to the sound discretion of the trial court.   We find no abuse of that discretion.   The mention of gangs in the threat was relevant to the intended impact of the threat on Mrs. Mendoza.

CALJIC No. 2.50

 After hearings outside the presence of the jury, the trial court ruled that evidence of appellant's possession of a gun approximately one week before the incident in question could be admitted.   The trial court held that this evidence was relevant on the issue of the operability of the gun during the charged offense of assault with a deadly weapon inasmuch as appellant had stated on the prior occasion that the gun was in working order.   Appellant contends that the trial court should have instructed the jury sua sponte, pursuant to CALJIC No. 2.50, on the use that may be made of evidence of other crimes.   To support his contention appellant cites People v. Williams (1970) 11 Cal.App.3d 970, 976–978, 90 Cal.Rptr. 292.

This court in People v. Morrison (1979) 92 Cal.App.3d 787, 790–791, 155 Cal.Rptr. 152, refused to hold that a trial court is under a sua sponte duty to give CALJIC No. 2.50, and stated that the limiting instruction is waived by defense counsel's failure to request it.   The overwhelming majority of reported cases have refused to follow Williams.  (See e. g., People v. Haylock (1980) 113 Cal.App.3d 146, 150, 169 Cal.Rptr. 658;  People v. Harris (1977) 71 Cal.App.3d 959, 966, 139 Cal.Rptr. 778;  People v. Jackson (1975) 45 Cal.App.3d 67, 70, 119 Cal.Rptr. 71.)   Since Williams stands nearly alone in support of the view that a trial court has a sua sponte duty to give CALJIC No. 2.50, we decline to follow Williams.

New Trial Motion

After the trial in the present case, the trial court granted appellant's motion to relieve his attorney and to appoint a new attorney to represent appellant at a hearing on appellant's motion for a new trial and at sentencing.   Appellant's new counsel filed a motion for a new trial in which he argued that he was entitled to have a reporter's transcript of the trial prepared in order to enable him to adequately represent appellant in his motion for a new trial.   Counsel alleged in the motion that trial counsel had been incompetent in seven particulars.   The trial court denied the request for a reporter's transcript on the following grounds:  (1) it was not timely made;  (2) another alternative could have been pursued (the court reporter could have read his notes on the parts of the trial on which the motion for a new trial was premised);  (3) appellant had in part created the situation by discharging his trial attorney;  and (4) the court's observations and notes led it to believe that the expense and time of preparing the transcript was not justified by the specific points advanced in support of the request for a transcript.   Appellant contends on appeal that he “was deprived of adequate assistance of counsel by the denial of substituted counsel's request for a transcript of those trial proceedings at which counsel was not present.”

 In Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the United States Supreme Court held that the state must provide an indigent with a free reporter's transcript on appeal if the transcript is necessary to secure proper appellate review.  “If it [the state] has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity.”  (Id., at p. 24, 76 S.Ct., at p. 593 (conc. opn., Frankfurter, J.).)   This right clearly covers a transcript of prior proceedings when such transcript is needed for an effective defense or appeal.  (Britt v. North Carolina (1971) 404 U.S. 226, 227–230, 92 S.Ct. 431, 433, 30 L.Ed.2d 400;  Roberts v. LaVallee (1967) 389 U.S. 40, 42, 88 S.Ct. 194, 196, 19 L.Ed.2d 41.)   The United States Supreme Court has identified “two factors that are relevant to the determination of need:  (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.”  (Britt v. North Carolina, supra, 404 U.S. at p. 227, 92 S.Ct. at p. 433.)   But the court indicated that it can ordinarily be “assumed” that a transcript of a prior proceeding would be valuable to a defendant on a retrial;  and a “defendant who claims the right to a free transcript does not, under our cases, bear the burden of proving inadequate such alternatives as may be suggested by the State or conjured up by a court in hindsight.” ⁵  (Id., at pp. 228, 230, 92 S.Ct., at pp. 434, 435.)   Although the United States Supreme Court accepted petitioner's assertion in Britt that a transcript of prior mistrial would be of value upon retrial, the court affirmed a state court decision which denied petitioner a transcript stating, “The trials of this case took place in a small town where, according to petitioner's counsel, the court reporter was a good friend of all the local lawyers and was reporting the second trial.   It appears that the reporter would at any time have read back to counsel his notes of the mistrial, well in advance of the second trial, if counsel had simply made an informal request.  [¶] ․ [P]etitioner has conceded that he had available an informal alternative which appears to be substantially equivalent to a transcript.”  (Britt v. North Carolina, supra, 404 U.S. at pp. 229–230, 92 S.Ct., at p. 434.)

In People v. Hosner (1975) 15 Cal.3d 60, 123 Cal.Rptr. 381, 538 P.2d 1141, the California Supreme Court held that a defendant was presumptively entitled to a free and full transcript of a prior mistrial for use in a subsequent trial.  (Id. at pp. 65–66, 123 Cal.Rptr. 381, 538 P.2d 1141.)  “It follows that the court below erred in denying defendant's motion for a transcript unless, at the hearing on that motion, the prosecution was able to overcome the presumptions of defendant's particularized need for the transcript and of the unavailability of adequate alternative devices.”  (Id., at p. 66, 123 Cal.Rptr. 381, 538 P.2d 1141.)  “Hosner, however, conditions the right to such a transcript on proof of indigency and a timely motion before the second trial.”  (People v. Straiten (1977) 71 Cal.App.3d 526, 533, 139 Cal.Rptr. 414.)   The court in Hosner held that the erroneous denial of a free transcript of a prior trial for use in a subsequent trial requires automatic reversal.  (People v. Hosner, supra, 15 Cal.3d at p. 70, 123 Cal.Rptr. 381, 538 P.2d 1141.)   The court, however, expressly reserved decision of applying “the per se rule of prejudice” to other proceedings.  (Id., at p. 71, fn. 7, 123 Cal.Rptr. 381, 538 P.2d 1141.)

However, Hosner did not consider an indigent defendant's right to a full transcript of his trial proceedings for his lawyer's use in connection with a motion for a new trial.  (See People v. Hosner, supra, at p. 71, fn. 7, 123 Cal.Rptr. 381, 538 P.2d 1141;  People v. Westbrook (1976) 57 Cal.App.3d 260, 263, 129 Cal.Rptr. 143.)  Griffin v. Illinois, supra, involved the failure to provide a trial transcript for use on appellate review.  Hosner and Britt v. North Carolina, supra, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400, involved a request for a transcript of a trial which ended in a hung jury and the defendant sought the transcript as an aid in his defense at the retrial.   In both Britt and Griffin the United States Supreme Court found a clear denial of equal protection of the laws and ordered the petitioners to be provided the appropriate transcripts.   In each circumstance financial standing was determinative of the quality of the trial or appeal.

The United States Supreme Court has not applied Britt and Griffin to a motion by an indigent for a transcript of his original trial to aid the indigent in preparing a petition for post-conviction relief.  (See Wade v. Wilson (1970) 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470.)   In United States v. MacCollom (1976) 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666, the United States Supreme Court upheld a federal statute which provides before an indigent person will be afforded a free transcript to be used in a collateral attack of a final judgment of conviction under 28 United States Code section 2255, the “ ‘trial judge or a circuit judge’ ” must certify “ ‘that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal ․’ ”  (Id., at p. 320, 96 S.Ct., at p. 2089.)   Although the court recognized the statutory conditions under consideration (28 U.S.C. §§ 753(f), 2255) placed an indigent in a “somewhat less advantageous position than a person of means,” the court stated that the statutory conditions did not deny an indigent of equal protection of the laws.  (Id., at p. 324, 96 S.Ct., at p. 2091.)  “[N]either the Equal Protection Clause of the Fourteenth Amendment, nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees ‘absolute equality or precisely equal advantages,’ [citation].   In the context of a criminal proceeding they require only ‘an adequate opportunity to present [one's] claims fairly ․’ ”  (Id., at p. 324, 96 S.Ct., at p. 2091.)   The court noted that respondent in MacCollom would have been afforded a free transcript had he pursued a direct appeal, but that he stood in a “different position” since he was seeking collateral relief.  (Id., at pp. 324–325, 96 S.Ct., at 2091.)

The court in MacCollom, in holding the statutory scheme was constitutional stated:  “We think that the formula devised by Congress satisfies the equal protection component of the Fifth Amendment.   Respondent chose to forego his opportunity for direct appeal with its attendant unconditional free transcript.   This choice affects his later equal protection claim as well as his due process claim.   Equal protection does not require the Government to furnish to the indigent a delayed duplicate of a right of appeal with attendant free transcript which it offered in the first instance, even though a criminal defendant of means might well decide to purchase such a transcript in pursuit of relief under § 2255.   The basic question is one of adequacy of respondent's access to procedures for review of his conviction ․ and it must be decided in the light of avenues which respondent chose not to follow as well as those he now seeks to widen.   We think it enough at the collateral-relief stage that Congress has provided that the transcript be paid for by public funds if one demonstrates to a district judge that his § 2255 claim is not frivolous, and that the transcript is needed to decide the issue presented.”   (Id., at pp. 325–326, 96 S.Ct., at p. 2091.)

 An indigent defendant who seeks a transcript for a hearing on his motion for a new trial also stands in a different position than a defendant who seeks a transcript for a direct appeal or for use in a retrial.  “A motion for a new trial is consistently placed in a different category than the original trial or an appeal from a conviction.”  (United States v. Banks (M.D.Pa.1974) 369 F.Supp. 951, 954.)   If an indigent defendant's motion for a new trial is denied, he may still attack his conviction in a direct appeal where he will be afforded a transcript.  “The judges reviewing a case on appeal have no familiarity with the case without a transcript.   Absent a stipulation as to all material facts, the appellate court would be groping in the dark without such a transcript.   Precisely the opposite is true where the trial judge is called upon to review a case over which he presided.”  (Id., at p. 955, fn. 7;  see also United States v. MacCollom, supra, 426 U.S. 317, 326–327, fn. 4, 96 S.Ct. 2086, 2092, fn. 4, 48 L.Ed.2d 666.)   In United States v. Banks, supra, the court held that a request for a free transcript by an indigent defendant for use on a motion for a new trial is directed to the sound discretion of the trial judge.   The court in reaching this conclusion reasoned that a defendant seeking a new trial in the trial court is in a different position than a defendant seeking a reversal of his conviction on appeal.   For all the reasons mentioned above and from our review of the United States Supreme Court cases in this area, we agree with the conclusion reached by the court in Banks.  (See People v. Lopez (1969) 1 Cal.App.3d 78, 83–84, 81 Cal.Rptr. 386.)

 Appellant, in the instant case, has failed to show that the trial court abused its discretion in denying his request for a free transcript for use in his motion for new trial.   Appellant admits the having the court reporter read the portions of the transcript relating to the issues specifically raised in the motion for a new trial would have been an adequate alternative as to those issues, but argues counsel was foreclosed from finding other potential arguments that he might have discovered if he could have read the entire transcript.   A trial court may properly deny a request for a free transcript on a motion for new trial, when the indigent defendant fails to show a “particularized need” but merely alleges he needs the transcript to search for yet unasserted grounds.  (Bentley v. United States (6th Cir. 1970) 431 F.2d 250, 253–254, cert. den. 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823;  United States v. Banks, supra, 369 F.Supp. 951, 954–955;  State v. Peterson (1976) 46 Ohio St.2d 425, 349 N.E.2d 308.)   Such a colorable showing of need is only sufficient when an indigent defendant seeks a transcript for a direct appeal or for a retrial.   To reach any other conclusion would mean that an indigent individual would have a nearly automatic right to a transcript of an entire trial merely for the asking with no consideration being given to the nature of the proceedings for which the transcript is sought.   As shown above such a result is neither justified by the United States Supreme Court rulings nor is it necessary to preserve equal protection of the laws.

Sentencing

Appellant contends that imposition of the upper term for his violation of Penal Code section 245, subdivision (a), was error because the trial court mentioned two factors in aggravation which were improper.   At the sentencing hearing the trial court gave the following reasons for its choice of the upper term of imprisonment on the conviction of assault with a deadly weapon:  “The defendant was in possession of a weapon at the time, the crime involved multiple victims and following the incident the defendant returned and threatened the victims with further violence if they cooperated with the police.   The Court further finds the defendant has engaged in the past on repeated occasions in violent conduct and is a danger to the community.   The Court further finds that the defendant's prior convictions as an adult and a juvenile are numerous and consistent and repetitive.   And finally, the defendant was on parole at the time of the commission of this offense, and that his performance on parole as found by the Probation Department was unsatisfactory.”   Appellant states:  “Possession of a weapon is obviously an element of the offense and, accordingly, ‘may not be used to impose the upper term.’  [Citation.]  Inasmuch as appellant was charged and convicted only of assaulting Mr. Mendoza, the crime did not involve multiple victims.”

 Rule 421(a) of the California Rules of Court lists circumstances in aggravation and includes in this list the circumstance that the crime involved multiple victims.   Although appellant was not charged or convicted of assaulting Mrs. Mendoza, the trial court properly considered the facts surrounding the charged offense and the fact that multiple victims were threatened.  (People v. Cortez (1980) 103 Cal.App.3d 491, 495–497, 163 Cal.Rptr. 1;  People v. Fulton (1979) 92 Cal.App.3d 972, 976, 155 Cal.Rptr. 327;  People v. Guevara (1979) 88 Cal.App.3d 86, 93, 151 Cal.Rptr. 511.)

 Appellant is correct in his contention that the court improperly considered that appellant “was in possession of a weapon ․”  Rule 441(d) of the California Rules of Court provides:  “A fact which is an element of the crime may not be used to impose the upper term.”   Possession of a weapon is an element of assault with a deadly weapon.  (People v. Allums (1975) 47 Cal.App.3d 654, 659, 121 Cal.Rptr. 62, cert. den. 423 U.S. 934, 96 S.Ct. 291, 46 L.Ed.2d 266, overruled on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 286, fn. 35, 148 Cal.Rptr. 890, 583 P.2d 748.)   However, the error was harmless.  Penal Code section 12022.5 provides that a sentence may be enhanced if the defendant used a firearm and that the section 12022.5 enhancement applies “in cases of assault with a deadly weapon under Section 245.”   Appellant did not merely possess a weapon, but he used a firearm.  (People v. Gilliam (1974) 41 Cal.App.3d 181, 193, 116 Cal.Rptr. 317;  People v. Faulkner (1972) 28 Cal.App.3d 384, 394, 104 Cal.Rptr. 625, disapproved on other grounds in People v. Hall (1980) 28 Cal.3d 143, 156, fn. 8, 167 Cal.Rptr. 844, 616 P.2d 826.)   The trial court could have considered as a circumstance in aggravation appellant's use of a firearm.  (Cal. Rules of Court, rule 421(a)(2).)   The fact that the trial court mentioned a weapon rather than use of a firearm when in fact appellant used a firearm must be deemed harmless error.  (People v. Dozier (1979) 90 Cal.App.3d 174, 179, 153 Cal.Rptr. 53.)

 Appellant also argues that the trial court improperly imposed concurrent terms for assault with a deadly weapon and possession of a firearm by a felon.   The People agree.  (People v. Cruz (1978) 83 Cal.App.3d 308, 332–333, 147 Cal.Rptr. 740.)   The proper procedure in such a situation is for this court to affirm the judgment of conviction, but to provide that execution of sentence on the lesser offense (violation of Penal Code section 12021) shall be stayed pending appeal and service of sentence on the greater offense (violation of Penal Code section 245, subdivision (a)), with the stay to become permanent on completion of service of the sentence on the greater offense, and we do hereby declare that the judgment is so modified.  (People v. Miller (1977) 18 Cal.3d 873, 886, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Beamon (1973) 8 Cal.3d 625, 640, 105 Cal.Rptr. 681, 504 P.2d 905.)

The judgment as modified is affirmed.

FOOTNOTES

1.   Other testimony at trial indicated that appellant pointed a .38 revolver at the Mendozas.   A police officer testified that a .38 caliber revolver can hold five or six bullets.

2.   Appellant also suggests that the standard instructions on present ability might explain the jury's verdict in this case, because these instructions “are wholly inadequate in that they completely fail to focus and provide guidance upon the components of the ‘present ability’ requirement when the potential deadly weapon is a gun.”   The trial court in the instant case instructed the jury on this issue by reading CALJIC Nos. 9.03 and 9.08.   In People v. Mosqueda, supra, 5 Cal.App.3d 540, 544, 85 Cal.Rptr. 346, similar instructions were held to be adequate to inform the jury that an assault with a deadly weapon could not be committed with an unloaded gun, unless the defendant used it as a club or bludgeon.   If appellant believed that further instructions were necessary, he should have requested them.  (People v. Martinez (1978) 82 Cal.App.3d 1, 19, 147 Cal.Rptr. 208.)

3.   When Mrs. Mendoza first testified that appellant mentioned two gangs in his threat, defense counsel asked to approach the bench.   Thereupon, defense counsel, the prosecutor and the trial judge had a conference which was outside the hearing of the jury and the court reporter.   After the conference the prosecutor was allowed to resume his examination regarding the threat and the fact that appellant mentioned two gangs.

4.   Defense counsel did renew her objection before Mrs. Mendoza testified to the threat in question.   The court again ruled such evidence was admissible but cautioned the district attorney “not to overload it.”

5.   In regard to the presumption of need for the transcript of a prior trial for use in a subsequent trial, the court in Britt stated:  “even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways:  as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.”   (Britt v. North Carolina, supra, 404 U.S. 226, 228, 92 S.Ct. 431, 434, 30 L.Ed.2d 400.)When Mayer v. City of Chicago (1971) 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372, is considered with the language contained in Britt, it is clear that an indigent defendant need not make a particularized showing that a complete or partial transcript of a prior proceeding is of value but is required in certain circumstances only to make a colorable showing.   (Mayer v. City of Chicago, supra, at p. 195.)   Once an indigent defendant has made a colorable showing, the state must demonstrate that an available alternative device will serve substantially the same function as a transcript.

WHITE, Presiding Justice.

SCOTT and FEINBERG, JJ., concur.