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P. v. Nogueda

The trial court sentenced defendant Alan Nogueda to a prison term of 26 years and 8 months after a jury convicted him of four counts of assault with a semiautomatic firearm, one count of corporal injury to the parent of his child, one count of false imprisonment, two counts of making criminal threats, one count of endangering the health of a child, and two other misdemeanor violations. The jury found true the allegations that defendant willfully and unlawfully personally used a firearm as to all counts on which he was convicted, except two.
The victims were defendant’s four- and one-half-month-old daughter, his daughter’s mother, and his own mother.
Defendant argues there was insufficient evidence that he had the present ability to commit an assault because there was no evidence the gun was loaded. He argues the trial court should have sua sponte instructed that there was no present ability to commit an assault if the gun was unloaded, and that his trial counsel was ineffective for not requesting such an instruction.
He claims he received ineffective assistance of trial counsel because his counsel failed to object to certain testimony. He also claims two of his prison sentences should have been stayed pursuant to Penal Code section 654.[1]

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