Filed 10/17/17 P. v. Farrow CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Christopher G. Estes, Judge. Affirmed.

Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

A jury found defendant and appellant Corina Rose Farrow guilty of possession of a firearm by a felon and simple assault. She appealed, and her appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by information with two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2))[1] (counts 1 and 3), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1) (count 2)). As to count 1 only, there was an allegation that the defendant personally used a firearm. (§ 12022.5, subd. (a).) The court denied the People’s request to amend to add the section 12022.5, subdivision (a) allegation as to count 3 as untimely. It was further alleged that the defendant suffered a prior felony conviction which was a serious or violent felony, within the meaning of sections 667, subdivisions (b)-(i) and 1170.12, a serious felony, within the meaning of section 667, subdivision (a)(1), and a prior conviction, within the meaning of section 667.5, subdivision (b). Prior to jury selection, the defendant admitted the prior felony conviction as an element of count 2, and for the purpose of the priors. The jury convicted the defendant of possession of a firearm by a felon, acquitted her of the alleged assaults with a firearm, and convicted her of the lesser included offenses of misdemeanor assault.

The trial court denied an oral Romero motion,[2] denied probation and sentenced defendant for the possession of a firearm by a felon to three years in state prison doubled to six years under the Three Strikes law, and as to each of the misdemeanor convictions, 180 days in the county jail to run concurrently to each other and count 2. She received 221 days of actual presentence custody credit and 220 days of good time/work time credit, totaling 441 days, and was ordered to pay an $1,800 victim restitution fine (§ 1202.4, subd. (b)), an $1,800 parole revocation fine (§ 1202.45) which was stayed, a $40 court security fee (§ 1465.8, subd. (a)(1), and a $30 criminal conviction assessment (Gov. Code, § 70373).

Defendant filed a timely notice of appeal.

I. The Prosecution’s Case

On September 24, 2015, about midnight, Jessie Berg and Joshua Korczyk went to Sharky’s Bar and Grill with a group of friends. The defendant was also at Sharky’s. When Sharky’s closed at about 2:00 a.m., Berg, Korczyk and their friends went outside, and spoke for about 10 to 20 minutes. While the group was outside, defendant, who appeared intoxicated, also left Sharky’s. She told the group that it was her companion’s birthday. Everyone then separated to their respective cars.

Berg then asked the bartender, who was also outside, if she had called a cab for defendant and her companion as they seemed inebriated. Berg and Korczyk went to their car and Berg got in. As Korczyk was halfway in the car, he heard someone say something, so he got out of the car. Defendant waved a gun around and pointed it at him. She said things like “ ‘You think you are tough now? You want to talk [shit].’ ” He felt panicked. Seeing the defendant standing there, Berg also got out of the car. Korczyk and one of their friends observed defendant appear to drop something to the ground, which sounded like metal “scraping across asphalt,” and then pick up a firearm. Defendant then pointed the gun at Berg, “racked” the gun, putting a bullet into the chamber, and said words like “ ‘You feel big now? Talk shit with a gun pointed at you. See what happens now, bitch.’ ” Scared, Berg answered that they were just “ ‘trying to get home.’ ” Defendant said “ ‘Yeah. You feel big now. Huh, bitch,’ ” and allowed them to get into their car.

Berg was experienced with guns, having sold firearms at sporting good stores in various states and having shot handguns, rifles and shotguns. She knew how to load a weapon, chamber a round, take off the safety, and fire a weapon. She believed the gun was a Glock, and that it had a hole at the tip of the barrel. When defendant “racked” the gun, Berg heard two clicks, “like you would hear if a firearm was loaded,” or “if a bullet was to be put into the chamber.” Korczyk was also familiar with firearms: he owned rifles, a shotgun, and pistols, including a semiautomatic. He believed the item in defendant’s hand “looked like a gun,” a semiautomatic “like a Glock.”

II. Defendant’s Case

Forensic firearms examiner Leonard Romero testified regarding the differences between real firearms, training guns, and replica guns. Real firearms discharge a bullet down the barrel of a gun through an explosion; BB guns discharge a pellet down the barrel through compressed air; Airsoft guns use compressed air to shoot small plastic pellets. Training guns are real guns which shoot a blank cartridge. Mock training guns are plastic guns that are replicas of real guns. Some replica guns look and feel like real firearms, and some are constructed of metal so they have the same weight or a similar weight. These type of replica guns will have functional components like a slide. Some replica guns have orange tips; others do not. When the slide is pulled back on a semiautomatic firearm, and a “click-click” is heard, this does not necessarily mean that the firearm is loaded. Also, with a replica gun with a functional slide, it is possible that pulling the slide back would make a “click-click” noise.

Los Angeles Sheriff’s Deputy Huezo investigated the incident. He interviewed Berg and Korczyk the night of the incident. Neither said that the defendant pointed the gun at Korczyk; Korczyk did not say that defendant pointed a gun at Berg. Neither related certain statements that each had attributed to defendant at trial. He did not locate a firearm, nor did he obtain video surveillance that had been recorded at Sharky’s. Approximately one month after the incident, Los Angeles Sheriff’s Detective Schank attempted to obtain the video surveillance; it had been erased.

The trial court denied a motion to dismiss all counts under section 1118.1.

DISCUSSION

After review of the record, appellant’s court-appointed counsel filed an opening brief which raised no issues and which asked this court to conduct an independent review of the record, under People v. Wende, supra, 25 Cal.3d at p. 441. By letter dated June 15, 2017, we advised appellant that she had 30 days to submit by brief or letter any contentions or argument he wished this court to consider. Appellant did not file a supplemental brief.

We have examined the record and are satisfied appellant’s attorney has fully complied with the responsibilities of counsel and no arguable issue exists. (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende, supra, 25 Cal.3d at p. 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BACHNER, J.*

We concur:

EDMON, P.J.

LAVIN, J.