P. v. Lopez

Filed 8/2/06 P. v. Lopez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick T. Meyers, Judge. Modified and affirmed.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

BACKGROUND

Appellant, Horacio Lopez Lopez, was convicted of first-degree murder in the shooting death of his wife, Michelle Anne Lopez.[1] In addition, the jury found the special allegations, that he personally and intentionally discharged a firearm within the meaning of Penal Code section 12022.53, subdivisions (c) and (d), and that he personally used a firearm within the meaning of section 12022.53, subdivision (b), to be true.[2] On November 3, 2005, appellant was sentenced to 50 years to life in prison, with 705 days credit for actual time in custody, later corrected to 706 days.[3] A timely notice of appeal was filed the same day.

DISCUSSION

Appellant contends that his right to cross-examine the prosecution's firearms expert was unduly restricted, that the prosecution was improperly permitted to impeach appellant with evidence of his post-arrest silence, and that the trial court erroneously instructed with regard to implied malice9.[4] We reject each of appellant's assignments of error and affirm the judgment.

1. Cross-Examination of Firearms Expert

Appellant testified in his own behalf, and admitted to having gone to Michelle's place of employment with a loaded handgun, but claimed that he merely meant to frighten a perceived rival whom he claimed to have seen there with her. He denied shooting her intentionally, claiming that when he approached Michelle with the gun, she tried to take it from him, a struggle ensued, and the gun accidentally discharged twice, once as they struggled and a second time when the gun dropped to the floor. He claimed that he did not notice whether the safety latch was off or on, but he admitted that he had shot the gun previously at a target range.

The prosecution called Los Angeles County Deputy Sheriff, Edmund Anderson, a crime lab firearms examiner. On direct examination, he testified that the weapon used by appellant was a Bryco nine-millimeter semiautomatic pistol. Anderson conducted four firing tests and a trigger-pull test to determine the amount of pressure it would take to fire the weapon. The gun was fully functional, fired in the manner it was designed to fire, and required 10¾ to 11 pounds of pressure to do so. Anderson explained the slide, chambering, and ejection functions of the gun, as well as the manual safety latch, which would prevent the trigger from being pulled, even when there is a chambered cartridge and the gun is otherwise ready to shoot.

On cross-examination, defense counsel asked whether dropping the gun could cause it to discharge. Anderson replied that it was possible, but â€