P. v. Falcon

Filed 4/5/07 P. v. Falcon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Manuel Larry Falcon (defendant) challenges the sufficiency of the evidence for one of his four assault convictions. We will affirm.

Facts and procedural history

Defendant is a member of an Elsinore criminal street gang known as the Elsinore Vatos Locos or EVL. On November 19, 1998, he attended the funeral of a fellow EVL gang member, Henry Estrada. Estrada had been killed about a week earlier by a member of a rival gang, the Elsinore Young Classics or EYC.

About 4:00 p.m. the afternoon of the funeral defendant arrived at an apartment complex in Elsinore where EYC gang members were known to congregate in unit three. At the time, Virgil Beeler and his co-worker Bobbie Jones were laying carpet in unit one; a seven-year-old little girl was playing in the apartment as the men worked. Beeler heard screeching tires outside and looked out the window to see defendant running down the street shouting, Im with EVL and Im packing a .9 millimeter. Beeler and the little girl saw defendant run up to a man named Joe or Jose, who was holding his baby at the time, and point a gun at him. Defendant and Joe exchanged some words. Defendant then entered the apartment where the men were working and pointed the gun at Beeler, Jones, and the little girl.

On October 27, 2005, a jury convicted defendant of four counts of assault with a firearm (Pen. Code 245, subd. (a)(2)),^[1]and one count of participation in a street gang

( 186.22, subd. (a)). In addition, the jury found true allegations that defendant personally used a handgun in each of the four assaults ( 12022.5, subd. (a)), and that he committed the offenses for the benefit of a street gang. ( 186.22 subd. (b).)

On March 30, 2006, the trial court sentenced defendant to nine years in state prison.

Discussion

Defendant argues on appeal that there is not sufficient evidence to support his conviction for having pointed a gun at Joe because the victim was not otherwise positively identified. We disagree.

Standard of Review:

In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -- evidence that is reasonable, credible and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If there is substantial evidence supporting the judgment, the fact that other inferences could also have been reasonably drawn does not justify a reversal. (Id. at p. 1054.)

Assault:

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another. ( 240) The mental state necessary to support a conviction of assault is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) [T]he use of the described force is what counts, not the intent with which same is employed. (Id. at pp. 214-215, quoting People v. Finley (1963) 219 Cal.App.2d 330, 340.) Because the offensive or dangerous character of the defendants conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. (People v. Colantuono, supra,7 Cal.4th at p. 215.) It has long been established that pointing a gun at a person who is within its range can constitute assault. (People v. Raviart (2001) 93 Cal.App.4th 258, 263, citing and discussing People v. Laya (1954) 123 Cal.App.2d 7, 16, and People v. McMakin (1857) 8 Cal. 547.) The name and characteristics of the victim are not elements of assault. The law is seeking to punish the reckless disregard of human life, and what needs to be shown is that a human life was threatened in the manner proscribed in Sections 245 and 240. (People v. Griggs (1989) 216 Cal.App.3d 734, 742.)

In this case, the jury heard testimony from two of defendants three other victims that they saw him point his gun at a fourth, Joe or Jose. Defendant did this after shouting his gang affiliation and armed status and running up to the victim, who was holding a baby at the time. Pointing a gun at anyone, whether or not the victims name is known, is dangerous conduct that by its nature will probably and directly result in injury to the person at whom the gun is pointed. Pointing a gun at, and arguing with, a person holding a baby shows reckless disregard for the lives of both the adult and the child. We conclude that substantial, credible, evidence supported the jurys finding that defendant assaulted Joe (not to mention the baby) in addition to Beeler, Jones, and the little girl.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1] All further statutory references are to the Penal Code, unless otherwise indicated.