P. v. Otero
Antonio Arellano Otero was convicted of two counts of assault with a deadly weapon, enhanced with personal use of a firearm. (Pen. Code, 245, subd. (a), 12022.5, subds. (a) & (d).) He was sentenced to concurrent terms of five years in prison, based on the low term of two years, plus three years for the firearms enhancement.
The primary issue is: Could appellant be convicted of assault with a deadly weapon, when he pointed his gun at a security guard and repeatedly tried to fire it, but the gun did not and could not fire, because its safety was still on? That issue is similar to the following issue, presently before the California Supreme Court in People v. Chance (2006) 141 Cal.App.4th 618, review granted November 1, 2006, S145458: Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have immediately resulted from his conduct and did he lack the present ability to inflict injury within the meaning of Penal Code section 240.
Appellant also raises four issues regarding the instructions, which he contends resulted in cumulative error that deprived him of his right to due process of law under the United States and California Constitutions. Court find no error, and affirm.
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