P. v. Quinonez
Filed 6/18/13 P. v. Quinonez CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO SOTO QUINONEZ,
Defendant and Appellant.
D062463
(Super. Ct.
No. JCF28432)
APPEAL from
a judgment of the Superior Court
of
County, Christopher J. Plourd, Judge. Affirmed.
Ava R.
Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Melissa Mandel and Scott C. Taylor, Deputies Attorney
General, for Plaintiff and Respondent.
A jury found Gustavo Soto Quinonez guilty of making
§ 422) while armed with a firearm (§ 12022, subd. (a)(1)) and with
personal use of a firearm (§ 12022.5, subd. (a)) (count 2). The jury deadlocked on a charge of burglary
(§ 459) (count 1), and the court declared a mistrial on that count. The court sentenced Quinonez to prison for
four years four months: the 16-month
lower term for the substantive offense; the three-year lower term for personal
firearm use; and a stayed term for the remaining enhancement (§ 654). Quinonez appeals, contending the finding he
personally used a firearm is unsupported by
BACKGROUND
Quinonez's
ex-wife, Erin Benefield, lived with their two daughters (the children) and
Benefield's grandparents in the grandparents' house. Benefield had sole custody of the
children. She and Quinonez had verbally
agreed that neither parent would "bring another man or woman around [the
children]."
On March 18, 2011, Quinonez had a visit
with the oldest child, four-year-old T.
Around 8:30 p.m., Quinonez
returned T. to Benefield. T. told
Benefield she did not have fun because Quinonez "took that girl and her
boy" with them on the visit.
Benefield believed this was a reference to Quinonez's girlfriend. Benefield sent Quinonez a text message
stating, "Why the fuck would you take my child around that home wrecking
cunt? And you wonder why I hate
you." Quinonez telephoned Benefield
and said T. "doesn't know what she's talking about" and "made it
all up." Quinonez told Benefield "if [she] continued acting this way
[the children] would not grow up with a mother or father." Benefield took this to mean Quinonez would
kill her and then himself. After this
telephone conversation, Quinonez tried to call Benefield 11 times. She did not answer. He sent her a text message telling her to
answer the telephone.
At around 9:30 p.m., Quinonez walked up to Benefield's
house saying, "I know you're in there.
Open the fucking door."
Quinonez tried to open the front door but it was locked. He shook the door. He continued to tell Benefield he knew she
was inside and to "open the fucking door." He kicked the door several times. The children were holding onto Benefield. Quinonez opened a window and climbed through
it into the house. He walked quickly
toward Benefield, stood approximately three inches from her and yelled
repeatedly, "Who are you fucking?" and "you don't know
me." He looked very angry. He was pale and shaking, his mouth was dry
and his eyes were bloodshot.
Benefield
asked Quinonez to leave. He said he
would leave as soon as he got something.
He walked down the hall into Benefield's grandparents' bedroom and bent
over toward the dresser. Benefield heard
one of the drawers open. She knew her
grandfather kept a handgun in the dresser.
She had never seen the gun and did not know if it was loaded.
Quinonez
placed an object in the waistband of his pants, in the front, and pulled his
shirt over his pants. He walked toward
Benefield and the children. When he
reached them he pulled up his shirt, revealing the top of his pants. He put his hand on a hard object inside a
sock at his belt line. Benefield
believed the object was her grandfather's gun.
Quinonez's grip on the object was consistent with the way a person would
hold a gun. As he held up his shirt and
gripped the object, Quinonez repeatedly told Benefield to tell him who she was
fucking and said he was not going to ask her again. He repeatedly said he would kill her if she
did not tell him.
Benefield
envisioned Quinonez shooting her. She
was scared. She believed he was going to
kill her because he had taken the gun from her grandfather's room and had told
her their "kids were going to grow up without a mother and father." Benefield told Quinonez she loved him and
there was nobody else. She let him know
the children were scared. Quinonez
calmed down for a second. Benefield told
him to leave.
Quinonez
walked toward the garage and returned carrying two boxes of bullets in one hand
and a handful of bullets in the other hand.
He said he was taking the bullets in case Benefield decided to act
up. He angrily told her that if the
incident interfered with his aspirations to become a law enforcement officer,
he would come back and kill her. He said
if he found out she had called anyone, he would come back and "blow [her]
fucking head off." Benefield
believed Quinonez was going to kill her.
Quinonez
left the house, got in his car and drove away.
Benefield was scared and in shock.
She called her mother and they spoke for a few seconds. Benefield then called 911.
Police
officers arrived and while Benefield was speaking with them, Quinonez called
her. The police told Benefield to put
the call on speaker phone and told her what to say by writing notes and
whispering to her. Quinonez made several
comments about the gun: he never took
the gun; it was just a sock; he was kidding; he had taken the gun a month
earlier; and he had thrown the gun out the window. He did not deny threatening to kill
Benefield. He claimed he was in Brawley.
In two
instances, Benefield spoke to Quinonez figuratively. First, because the police had directed her to
push him to admit having the gun, she said, "you find it acceptable to
wave a gun in my face and your daughter's face." Second, when Quinonez said he did not want to
deal with their younger daughter's crying, and would not know what to do if she
had another seizure, Benefield said, "when their mother is pinned up
against the wall, scared the father is going to kill her, that's what I'm
talking about." Benefield
acknowledged that Quinonez had not touched or pushed her against the wall,
although she had been backed up against the wall. She acknowledged that he had not waved a gun
in her face.
title="">[4]
After the
police took Quinonez into custody, he claimed he had thrown the gun out a
window. He later said the gun was at his
house, in a kitchen drawer, behind a piece of plywood, inside a sock. The police found the gun there, inside a
sock.
Quinonez
told the police he had not threatened Benefield. He claimed that several months earlier, her
grandfather had given him permission to take the gun. Quinonez took the gun because he wanted to go
shooting in the desert the next day. He
lifted up his shirt and showed Benefield the gun. He took bullets from the garage.
Quinonez
testified he yelled at Benefield but did not threaten her or ask "who are
you fucking." He went into the
bedroom and grabbed the gun because Benefield had threatened to kill herself. He put the gun in his pants but did not show
it to Benefield. She saw the gun because
it was over his shirt. He grabbed the
ammunition from the garage because there were numerous guns in the house. As he drove home, he threw the bullets out
the window because Benefield had said she was going to call the police.
DISCUSSION
Section 12022.5,
subdivision (a), proscribes "personal[] use[] [of] a firearm in the
commission of a felony." "The
evidence is sufficient to prove the use of a firearm where there is some type
of display of the weapon, coupled with a threat to use it which produces fear
of harm in the victim.
'. . . [A] firearm is displayed when, by sensory
perception, the victim is made aware of its presence. Once displayed in such fashion, the threat of
use sufficient to produce fear of harm becomes a use of that firearm proscribed
by . . . section[] 12022 . . . .' [Citation.]
There is no requirement the victim actually see the gun. [Citation.]" (People
v. Dominguez (1995) 38 Cal.App.4th 410, 421.) There is no requirement the defendant actually
fire the gun. (People v. Wilson (2008) 44 Cal.4th 758, 806.)
" 'Although
the use of a firearm connotes something more than a bare potential for use,
there need not be conduct which actually produces harm but only conduct which
produces a fear of harm or force by means or display of a firearm in aiding the
commission of one of the specified felonies. . . . The obvious legislative intent to deter the
use of firearms in the commission of the specified felonies requires that
"uses" be broadly construed.'
[Citation.] 'Thus when a
defendant deliberately shows a gun, or otherwise makes its presence known, and
there is no evidence to suggest any purpose other than intimidating the victim
(or others) so as to successfully complete the underlying offense, the jury is
entitled to find a facilitative use rather than an incidental or inadvertent
exposure. The defense may freely urge
the jury not to draw such an inference, but a failure to actually point the
gun, or to issue explicit threats of harm, does not entitle the defendant to a
judicial exemption from section 12022.5[, subdivision] (a).' [Citations.]" (People
v. Wilson, supra, 44 Cal.4th at
pp. 806-807.)
We review
the gun use finding for substantial evidence.
(People v. Wilson, supra, 44
Cal.4th at p. 806.) We view the evidence in the light most
favorable to the judgment, defer to the jury's evaluation of the
303) and "accept logical inferences that the jury might have drawn from
the circumstantial evidence." (
396).
Quinonez
expressly, impliedly and repeatedly told Benefield he would kill her. He continued threatening her after forcing
his way into her home and positioning himself a few inches away from her, in
their children's presence. He went to a
bedroom, removed an object from a dresser where a handgun was kept, placed the
object in the waistband of his pants, and returned to Benefield and the children. He pulled up his shirt and gripped the object
in the manner one would grip a gun.
Benefield believed the object was her grandfather's gun, and did not
know if it was loaded. Quinonez made
conflicting statements about the gun and lied to the police. The police found the gun in a sock, as
Benefield had described.
Substantial
evidence supports the gun use finding.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
AARON, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] A recording of the 911 call was played for the jury.
