P. v. Ahumada

 

 

 

 

 

 

 

 

 

Filed 5/28/13  P. v. Ahumada CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
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THE PEOPLE,               Plaintiff and Respondent,               v.   MARCOS AHUMADA,               Defendant and Appellant.

B240577         (Los Angeles County       Super. Ct. No. PA070015)

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Cynthia L. Ulfig, Judge. 
Affirmed.

 

            Angela
Berry-Jacoby for Defendant and Appellant.

 

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

 

___________________________________________________

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            A jury
convicted defendant and appellant Marcos Ahumada of criminal threats (Pen.
Code, § 422) (count 1); assault with a
firearm (Pen. Code, § 245, subd. (b)) (count 2); carjacking (Pen.
Code, § 215, subd. (a)) (count 3); evading a peace officer (Veh. Code, §
2800.2, subd. (a)) (count 4); and vandalism (Pen. Code, § 594, subd. (a))
(count 5).  In counts 1 and 2, the jury
found that appellant personally used a firearm within the meaning of Penal Code
section 12022.5.  In count 3, the jury
found that appellant personally used a firearm within the meaning of Penal Code
section 12022.53, subdivision (b).  In
count 4, the jury found that appellant drove with a willful and wanton
disregard for the safety of persons and property.  Appellant admitted various prior conviction
allegations.  The trial court sentenced
appellant to state prison for a total of 44 years eight months.

            Appellant
appeals on the grounds that:  (1) the
jury was improperly given a general intent instruction relating to the evading
a peace officer charge; (2) the jury was improperly given a general intent
instruction relating to the criminal threats and carjacking charges; (3) the
trial court should have given a unanimity instruction with respect to the
assault with a firearm charge; (4) the trial court improperly allowed evidence
of appellant’s gang membership, including testimony by a gang expert; and (5)
there was insufficient evidence to
support the guilty verdicts on counts 1, 2, and 3.

            We
affirm. 

FACTS

Prosecution Evidence

            On February 14, 2011, at about
6:45 in the evening, Rosa Zetino stood talking to her neighbor, Benny
Rodriguez, in the courtyard of the apartment complex where they lived at 8220
Langdon Avenue in Van Nuys.  Appellant entered
the courtyard from the rear, walked up to Zetino, pulled a gun, and pointed it
at her face.  He said to Zetino either
“I’m going to blast you and your family,” or “I’m going to come back and blast
you and your kids.”  Appellant then
exited the complex, got into the passenger side of a white truck, and left the
area.

            Zetino and
some neighbors called the police.  Zetino
was shocked and afraid because of appellant’s threat.  Immediately after the incident, another
resident of the apartment complex approached her and told her that appellant was
a gang member who went by the name of “Bouncer.”  Zetino had seen appellant before when he came
by to retrieve his mail, since he used to live in the apartment she now
occupied, though it had been approximately 10 years prior.  At the time of trial in January 2012, Zetino
was still afraid as a result of the threats made in February 2011.

            At around
6:51 p.m. on February 14, 2011, the same night as the incident involving
Zetino, Loxi Greenfield entered a parking lot of a Baptist school in North
Hills, driving her 2006 GMC Yukon.  As
soon as she parked and opened the door of her vehicle, appellant appeared and
pointed a gun at her face.  He said,
“Bitch, get out of the fucking car.  I’m
going to fucking kill you.”  Greenfield
nervously fumbled some papers in her hand and appellant repeated his
command.  Greenfield then put down her
papers, got out of her vehicle, and walked a short distance away.  Appellant entered the vehicle but was unable
to find the key.  He walked back toward
Greenfield, and pointing the gun at her, said “Bitch, where are the fucking
keys?” and “I’m going to fucking kill you.” 
Greenfield told him that the keys were in the console.  Appellant got back in the vehicle, drove over
the curb, and left.  Greenfield left her
purse, containing approximately $180 in cash, in the vehicle.  The police were called on Greenfield’s
behalf.

            Los Angeles
Police Officer Jorge Esquivel and his partner, Officer Green, were in an
unmarked police car about 7:30 that evening when they received information that
a carjacking occurred, and that the vehicle was located at a gas station at the
corner of Sepulveda and Roscoe Boulevards. 
Officer Esquivel drove to the gas station, parked the police car near a
gas pump, and walked to a pay phone.  He
saw the GMC Yukon parked near a cinder block wall about 20 feet from the gas
pumps.  He then noticed appellant
standing across the street near some garbage cans, looking around.  Eventually, appellant darted across the
street and walked into the gas station, where he had a brief conversation with
the clerk.  Appellant asked the clerk if
there were any police around, and the clerk responded that he did not see any.

            Appellant
then got into the GMC Yukon and drove out of the gas station parking lot.  Officer Esquivel returned to his vehicle and
began to follow appellant, while broadcasting details of the pursuit to
awaiting officers.

            Officer
Peter Doomanis joined the pursuit in a marked patrol car.  As appellant drove by his car, appellant
looked directly at him.  Officer Doomanis
turned on his lights and sirens, and appellant immediately accelerated to 60 to
80 miles per hour while driving through a dense residential area.  Appellant passed cars on the wrong side of
the street and blew through a stop sign and a stop light, barely missing
pedestrians, including a man in a wheelchair. 
Officer Doomanis had to slow down at an intersection and lost sight of
appellant.

            Officer
Dennis Padgett apprehended appellant after he crashed the Yukon and took off on
foot.  Appellant was handcuffed and
placed alone into the backseat of the police car.  About five minutes later, Officer Padgett
heard a popping sound coming from the car and observed that the top of the part
of the window had been detached from the rear passenger doorframe.  He saw appellant lying on the rear seat with
his feet up in the air.

            Rodriguez
and Zetino were transported to the place where appellant was detained, and both
identified him as the person who had pointed the gun at Zetino.  Greenfield was also brought to view
appellant, and she identified him as her assailant, saying, “Yeah, that’s
definitely him.”  Appellant was searched,
and $181 was found in his pockets.  No
weapon was recovered.

Defense Evidence

            Appellant,
who previously had been convicted of grand theft and residential burglary,
testified on his own behalf.  He
testified that on February 14, 2011, he went to the apartment complex at 8220
Langdon Avenue in Van Nuys, where he had a conversation with a woman named Bridget.  He had “an incident” with Bridget, and he saw
a person who had tried to kill him a month before, so he jogged away from the
apartment building.  Appellant saw some
people he knew driving down the street, and he got a ride home from them.

            Appellant
arrived home at approximately 6:50 p.m.  He
went upstairs to his apartment and then downstairs to the laundry room to do
laundry.  When his laundry was done he
went back to his apartment where he drank “a couple beers.”

            At around
8:20 p.m., an acquaintance named Nathaniel Marquise Petrill, also known as
Deuce-Deuce, and a man who goes by the name “Smokey” came by appellant’s
apartment.  Deuce-Deuce told appellant
that he had argued with his girlfriend and she had called the police, so he
left her car, which he was driving, at a gas station.  Deuce-Deuce asked appellant if he could pick
up the car.  Appellant agreed, and
Deuce-Deuce drove appellant to a spot across the street from the gas station,
gave him the keys, and left appellant to pick up the car and drive it back to
his apartment.  Appellant walked over to
the gas station and retrieved the car, after first asking the gas station clerk
whether a woman had called the police. 
When appellant realized he was being pursued by police, he “panicked”
because he did not have a license, and because Officer Padgett, a member of the
Crash Unit Gang Task Force, had threatened appellant a month before that the
next time they caught him they were going to set him up.

            Appellant
admitted that he broke the police car window after he was arrested.  Appellant also admitted that in a phone call
after his arrest he told his Mother: 
“It’s just that I know I’m going to do time.  So in my mind, my mindset is not, ‘Oh, I am
going to get out.’  Oh, no, no.  I know I’m heading over there.  So I’m not even worried.”  Appellant made the statement to his mother
because she was sick and he did not want to worry her.

            Appellant
testified that the first time he had ever seen Zetino was at the href="http://www.mcmillanlaw.com/">preliminary hearing and that he had never
met Rodriquez.  He also testified that he
did not take the vehicle from Greenfield.

Prosecution Rebuttal
Evidence

            Officer
Padgett testified that he had never seen appellant before the night of February
14, 2011.  He had never worked with the
Crash Unit which, in any event, had been disbanded years ago.  Officer Padgett was not involved in the
vehicular pursuit of appellant, and the first time he came into contact with
appellant was when he saw him running down the street.

DISCUSSION

I.  Instructions Relating to Evading a Peace
Officer

            Appellant
contends that the trial court committed reversible error by instructing the
jury with CALCRIM No. 250, a general intent instruction, on the fourth count
for felony evading.  The trial court
stated that for the jury to find appellant guilty of evading, “that person must
not only commit the prohibited act or fail to do the required act, but must do
so with a wrongful intent.  A person acts
with wrongful intent when he or she intentionally does a prohibited act or fails
to do a required act; however, it is not required that her or she intend to
break the law.  The act required is
explained in the instruction for that crime or allegation.”

            A person
violates Vehicle Code section 2800.2, subdivision (a), if he “flees or attempts
to elude a pursuing peace officer in violation of Section 2800.1 and the
pursued vehicle is driven in a willful or wanton disregard for the safety of
persons or property . . . .” 
Vehicle Code section 2800.1 is violated by a “person who, while operating
a motor vehicle and with the intent to evade, willfully flees or otherwise
attempts to elude a pursuing peace officer’s motor vehicle . . . .” 

            Appellant
asserts that felony evading is a specific intent crime.  Based on the statutory language, he is
correct.  “When the definition of a crime
consists of only the description of a particular act, without reference to
intent to do a further act or achieve a future consequence, we ask whether the
defendant intended to do the proscribed act. 
This intention is deemed to be a general criminal intent.  When the definition refers to defendant’s
intent to do some further act or achieve some additional consequence, the crime
is deemed to be one of specific intent.” 
(People v. Hood (1969) 1
Cal.3d 444, 456-457; People v. Atkins
(2001) 25 Cal.4th 76, 82.)  The language
“with the intent,” which appears by reference to Vehicle Code section 2800.1 in
Vehicle Code section 2800.2, “typically denot[es]” a specific intent crime.  (People
v. Hering (1999) 20 Cal.4th 440, 446.) 


            Thus, the
trial court erred by instructing the jury with CALCRIM No. 250, which defines
general intent, instead of CALCRIM No. 251, which defines specific intent.  Nevertheless, we do not find that this
erroneous instruction requires reversal.  Such an error is not structural, requiring
automatic reversal, but rather is subject to the harmless beyond a reasonable
doubt standard expressed in Chapman v.
California (1967) 386 U.S. 18.  In >People v. Gutierrez (2002) 28 Cal.4th
1083, 1153-1154, the California Supreme Court found that a general intent
instruction given for the crime of threatening an executive officer was
harmless beyond a reasonable doubt because there “was evidence that defendant
harbored the requisite specific intent.” 
Similarly, in People v. Wilson
(2008) 44 Cal.4th 758, 803-804, harmless error was found even though written
jury instructions for a killing with torture special circumstance allegation
omitted the element that the defendant intended to torture the victim.  (See also People
v. Lee (1987) 43 Cal.3d 666, 669 [appropriate standard is “‘harmless beyond
a reasonable doubt’” test when jury receives contradictory, and partially
inaccurate, specific intent instructions]; People
v. Zerillo (1950) 36 Cal.2d 222, 231-232 [jurors were not misled by failure
to give specific intent instruction].) 

            In this
case, the relevant circumstances and evidence clearly establish that the jury’s
verdict of guilty on the felony evading charge was not attributable to the
problematic jury instruction.  First, the
jury was also instructed with CALCRIM No. 2181, which required them to find
that appellant “willfully fled from or tried to elude the officer, intending to
evade the officer.”  Thus, contrary to
appellant’s assertion, the jury would not have believed that appellant’s act of
driving was the only evidence required to find intent.  Second, appellant himself testified that he
“panicked” when he saw the police and drove away quickly because Officer
Padgett had threatened to set him up.  He
also admitted to saying to a detective, “I was afraid to go to jail, so I fled
when the police got behind me.”  This
evidence plainly shows that appellant drove with the intent of evading the
police.href="#_ftn1" name="_ftnref1" title="">^[1]  Third, during href="http://www.fearnotlaw.com/">closing argument, appellant’s counsel
conceded guilt of this crime, saying, “As to the counts 4 and 5, we’ve already
basically told you not to bother with those as far as the defendant is
concerned.”

            Therefore,
even though the trial court erred by instructing the jury with CALCRIM No. 250
on the intent to evade a peace officer charge, the error was certainly harmless
beyond a reasonable doubt.

II.  Instructions Relating to Criminal Threats
and Carjacking

            Appellant
argues that there were similar instructional errors with respect to the first
count of criminal threats and third count of carjacking.  As with the felony evading charge, the jury
was instructed with CALCRIM No. 250 for both the criminal threats and carjacking
charges.  For both of these charges, however,
the jury was also instructed with CALCRIM No. 251, as follows:  “For you to find a person guilty of the
crimes in this case of carjacking, criminal threats, and vandalism, that person
must not only intentionally commit the prohibited act but intentionally or
unintentionally fail to do a required act, but must do so with the specific
intent and/or mental state.  The act and
specific intent or mental state are explained in the instruction for that
allegation.” 

            Criminal
threats and carjacking are both specific intent crimes.  (See Pen. Code, §§ 422, subd. (a), 215, subd.
(a).)  Therefore, it was error for the
trial court to instruct the jury with CALCRIM No. 250.  (See People
v. Lee, supra,> 43 Cal.3d at p. 672.)  Nevertheless, we find that the error was
harmless beyond a reasonable doubt.

            The jury
was instructed with CALCRIM No. 1300 on the criminal threats charge, including
the requirement that “the defendant intended that his statement be understood
as a threat and intended that it be communicated to Rosa Zetino.”  For the carjacking charge, the jury was
instructed with CALCRIM No. 1650, which included the elements that “when the
defendant used force or fear to take the vehicle, he intended to deprive the
other person of possession of the property either temporarily or permanently,”
and “the defendant’s intent to take the vehicle must have been formed before or
during the time he used the force or threat or fear.  If the defendant did not form this required
intent until after using the force or fear, then he did not commit a
carjacking.”  Thus, given these clear
instructions, the jury could not have been confused about the intent required
to find appellant guilty of criminal threats or carjacking.

            Moreover,
the evidence overwhelmingly established that appellant had the requisite intent
for both of these crimes.  The evidence
that appellant pointed a gun at Zetino’s head and stated “I’m going to blast
you and your family,” or “I’m going to come back and blast you and your kids,”
showed that appellant intended the statement to be understood by Zetino as a
threat.  The evidence that he pointed a
gun at Greenfield’s head, said “Bitch, where are the fucking keys?” and “I’m
going to fucking kill you,” and then drove away in Greenfield’s vehicle showed
that he intended to deprive Greenfield of the vehicle, and that this intention
was formed before or while he used fear to take the vehicle.  Appellant has not argued, either below or on
appeal, that the element of intent was not proven.  The trial court’s error in instructing the
jury with CALCRIM No. 250 for these charges was clearly harmless beyond a
reasonable doubt.

III.  Assault with a Firearm

            Appellant
next argues that the trial court erred by failing to give a unanimity
instruction with respect to the second count for assault with a firearm.  He contends that although the prosecution
intended that the charge pertain to appellant’s assault against Zetino, the
charge could have just as easily pertained to the acts committed against
Greenfield, and that the jury was never properly instructed as to what events
constituted the crime.

            “In a
criminal case, a jury verdict must be unanimous.  [Citations.] . . . .  Additionally, the jury must agree unanimously
the defendant is guilty of a specific
crime.  [Citation.]  Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same
criminal act.  [Citations.]  [¶] 
This requirement of unanimity as to the criminal act ‘is intended to
eliminate the danger that the defendant will be convicted even though there is
no single offense which all the jurors agree the defendant committed.’”  (People
v. Russo (2001) 25 Cal.4th 1124, 1132.) 
In cases presenting a risk that the jury could amalgamate evidence of
multiple offenses to conclude that there is sufficient evidence to convict on
one count, a unanimity instruction may be required.  (Ibid.)  Appellant contends that such an instruction
was required here.

            A unanimity
instruction is not required when the prosecutor elects which act amounts to the
charged crime.  (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [“Because the
prosecutor’s opening argument elected what conduct by defendant amounted to the
crime charged, we conclude that no unanimity instruction was required”]; >People v. Diaz (1987) 195 Cal.App.3d
1375, 1383.)  In People v. Jantz (2006) 137 Cal.App.4th 1283, 1292, and >People v. Mayer (2003) 108 Cal.App.4th
403, 418-419, the court analyzed the statements made in the prosecutor’s
opening and closing arguments to determine that the prosecution made an
election for jury unanimity purposes, thereby obviating the need for a
unanimity instruction.

            An election
was likewise made in this case.  Prior to
jury selection, the jury was told that the crime of assault with a
semiautomatic weapon (later changed to assault with a firearm) was committed
against Zetino.  The prosecutor also made
clear that the charge pertained to the act against Zetino.  In his opening argument, he stated that
“there’s an assault and a criminal threat that just takes place here at Miss
Zetino’s house” and “I’ve no doubt that you will convict the defendant for the
crimes that he’s charged with for assaulting an unarmed woman for no reason,
for threatening to blast her, to come back and blast her and her family, for
carjacking another completely unarmed woman and in completely unprovoked
situation [sic], and for leading
police on an extremely dangerous high-speed pursuit through residential
streets.”  Furthermore, in closing
argument, the prosecutor stated that the assault with a firearm charge “has to
do with Rosa Zetino when he pointed his handgun at her head and—and threatened
to come back and blast—or threatened to blast her and her family.  This is—this is the count that this refers
to.”

            Thus,
because the prosecutor made a clear election, no unanimity instruction was
required. 

IV.  Gang Expert Testimony

            Prior to
trial, the defense filed a motion to exclude any reference to appellant’s gang
affiliation or gang moniker, on the ground that such information was unduly
prejudicial and irrelevant.  After
hearing opposition, the trial court denied the motion, finding that the information
would be relevant both to identification and to the “sustained fear” element of
the criminal threats charge.

            Later, at
trial, the prosecutor elected to call a gang expert solely to elicit a
statement that appellant is a member of the Toonerville gang, because,
according to the prosecutor, such information would be relevant to prove
“sustained fear.”  The trial court
allowed the gang expert to testify.  The
testimony by the expert, Officer Christopher Phillips, was brief.  He stated that he had been assigned to “work”
the Toonerville street gang for about four to five months, and he identified
appellant as a member of the Toonerville gang.

            Appellant
argues that he was denied the right to a fair trial and to due process when the
trial court admitted evidence that he was a gang member, and that it was abuse
of the court’s discretion to allow the expert to testify.  Our Supreme Court has recognized that
evidence a defendant is a member of a gang can have a “‘highly inflammatory
impact’” on the jury, and that such evidence should be carefully scrutinized by
the court before it is admitted.  (>People v. Champion (1995) 9 Cal. 4th
879, 922.)  Nevertheless, “evidence of
gang membership is often relevant to, and admissible regarding, the charged
offense.”  (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

            We find
that the evidence of appellant’s gang membership here was relevant to the
“sustained fear” element of the criminal threat charge.  Penal Code section 422, subdivision (a)
states, in relevant part:  “Any person
who willfully threatens to commit a crime which will result in death or great
bodily injury to another person, with the specific intent that the statement .
. . is to be taken as a threat, . . . which, on its face and under the
circumstances in which it is made, is so unequivocal, unconditional, immediate,
and specific as to convey to the person threatened, a gravity of purpose and an
immediate prospect of execution of the threat, and thereby causes that person
reasonably to be in sustained fear for his or her own safety or for his or her
immediate family’s safety, shall be punished by imprisonment . . . .”  Sustained fear is fear that extends beyond a
“momentary, fleeting, or transitory” period of time.  (People
v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

            Evidence of
appellant’s gang membership was relevant to prove sustained fear in part
because of the open-ended nature of appellant’s threat.  Penal Code section 422 “does not require an
immediate ability to carry out the threat.” 
(People v. Lopez (1999) 74
Cal.App.4th 675, 679.)  Whether appellant
said “I’m going to blast you and your family” or “I’m going to come back and
blast you and your kids,” the implication was that at some point, either
presently or later, Zetino and her family would be harmed.  Thus, Zetino’s fear was not just
momentary.  Instead, it was a sustained
fear—she testified that she was still in fear at trial, nearly a year after the
incident.

            Further,
Zetino’s testimony that soon after the incident she was told appellant was a
gang member did not make the gang expert’s testimony unnecessary.  Zetino could only testify that she had heard
appellant was a member of a gang; she had no independent knowledge of that
fact.  An expert was required to testify
that appellant actually was a gang member. 
The fact that appellant was a gang member made Zetino’s sustained fear
more reasonable and more likely to be true, and the evidence thereby provided
further support to the criminal threat charge. 
Thus, we find that the probative value of the evidence of gang
membership was not outweighed by its potential prejudicial effect, and the
trial court did not abuse its discretion by allowing such evidence.

V.  Sufficiency of the Evidence

            Appellant
asserts that the identification evidence was insufficient to support the guilty
verdicts on the first count of criminal threats, the second count of assault
with a firearm, and the third count of carjacking. 

            “The
standard of appellate review for determining the sufficiency of the evidence is
settled.  ‘“On appeal we review the whole
record in the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.”’” 
(People v. Wilson, >supra, 44 Cal.4th 758, 806.)  We do not reevaluate witness credibility or
resolve evidentiary conflicts, as these are matters exclusively for the jury to
decide.  (People v. Mejia (2012) 211 Cal.App.4th 586, 602.)  “‘“If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.”’” 
(People v. Stanley (1995) 10
Cal.4th 764, 793.)

            Appellant
bases his argument that the identification evidence was insufficient on
discrepancies between Zetino’s and Greenfield’s description of him.  Zetino described the suspect who threatened
her as wearing a blue and white plaid short-sleeved shirt, light blue jeans,
and a plain navy blue baseball cap, and said he held a shiny silver
pistol.  She described him as a male
Hispanic, bald with brown eyes, approximately five feet 11 inches, and 190
pounds.  Greenfield, on the other hand,
said the suspect was wearing a black baseball cap, a plaid bluish-gray shirt,
and solid-colored pants that she believed were khaki-colored.  She said the suspect held a dark-colored
gun.  She described him as approximately
six feet three inches.  Evidence showed
that on the night of the incidents, appellant was six feet one inch tall.

            None of
these minor discrepancies leads to the conclusion that there was insufficient
evidence to support the verdicts.  Both
crimes were committed outside, and both were committed after 6:30 p.m. on a
February night.  It could only be
expected that witnesses would have somewhat varying accounts of a suspect’s
description given such conditions, particularly after they both had guns
pointed at their heads.  Moreover,
Zetino, Greenfield and Rodriguez all identified appellant as the perpetrator,
both in court, at trial, and during a field showup on the night of the crimes.  “Purported weaknesses in identification
testimony of a single eyewitness are to be evaluated by the jury.”  (People
v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)  Nothing in the record compels us to
reevaluate the jury’s determinations.

            We also
find meritless appellant’s argument that there was insufficient evidence to
convict him on the assault with a firearm charge because there was no evidence
the firearm he used was loaded.  An
assault with a firearm “requires the present ability to inflict a violent
injury.”  (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)  But “California courts have often held that a
defendant’s statements and behavior while making an armed threat against a
victim may warrant a jury’s finding the weapon was loaded.”  (Id.
at p. 12.)  Zetino testified that
appellant pointed a gun at her head and said, “I’m going to blast you and your
family.”  This statement could reasonably
have been interpreted by the jury as an admission by appellant of his present
ability to inflict violent injury on Zetino. 
(See ibid.; >People v. Mearse (1949) 93 Cal.App.2d
834, 837.)

DISPOSITION

            The
judgment is affirmed.

            NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.

 

                                                                        BOREN,
P.J.

We concur:

 

            ASHMANN-GERST,
J.

 

            CHAVEZ, J.