P. v. Reyna

Filed 8/2/06 P. v. Reyna CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Gerald Sevier, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant, Richard Adolph Reyna, of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and possession of stolen property (Pen. Code, § 496, subd. (a)). In a separate proceeding, Reyna admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On appeal, Reyna contends: 1) the evidence is insufficient to sustain his assault conviction; and 2) the court committed instructional error with respect to the assault charge. We will affirm.

FACTS^[1]

Travis Laney testified that on September 17, 2004, at approximately 11:00 p.m., he was riding in a car driven by his brother-in-law when they saw Reyna, George Pacheco, and Lupe Rivera flicker their lighters. After his brother-in-law stopped the car, Laney was told to get out. Immediately upon exiting the car, Reyna and Pacheco began punching Laney as Rivera pointed a gun at Laney's face. Laney was also struck on the back of a head with a gun. Laney did not resist because the gun was pointed at his head. As he was being hit, Laney heard the men saying, â€