Filed 7/30/13 P. v. Martinez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047280

         v.                                                            (Super. Ct. No. 12CF0204)

DANIEL ANGEL MARTINEZ,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, M. Marc
Kelly, Judge. Affirmed.
                   Gambale & Gambale and Jennifer A. Gambale, under appointment by the
Court of Appeal, for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
                 Daniel Angel Martinez was convicted of assault with a semiautomatic
firearm (Pen. Code, § 245, subd. (b)1) for pointing a .22 caliber semiautomatic handgun
at a group of women in a fast food parking lot near central Santa Ana. He was sentenced
to a low term of three years, plus an extra three years for having personally used a firearm
in the commission of an assault (§ 12022.5, subd. (a)), then placed on probation.2 He
appeals his assault conviction on the theory the evidence supporting it was too
speculative. We disagree; the evidence was substantial.
                                                    FACTS
                 Almost all the evidence to support the assault conviction came from officer
Ceasar Flores, a Santa Ana Police Department detective who was witness to the events of
that early morning. Flores was by himself, driving a marked black and white police car
which at the time had no overhead blue and white lights. (The police lights were in the
passenger compartment, hence the car is referred to as a “slick top.”) Flores was
“cruising around” when he noticed a group of people in a McDonald’s parking lot: two
men and three or four women. He drove into the lot, turned his headlights off, and
lowered his window. He heard loud voices. While he couldn’t make out the words, he
could tell “they were engaged in an argument.”
                 The two men would later be identified as appellant Daniel Martinez and
Jesus Marincoss.3 In his testimony at trial, Flores was clear that Marincoss was “not
communicating with any of the group” but rather “stayed back watching.” Marincoss




         1       All statutory references are to the Penal Code.
         2       He was also convicted of carrying a concealed weapon inside a vehicle (§ 25400, subd. (a)(1)),
which is a misdemeanor, but imposition of that sentence was stayed pursuant to section 654.
         3       While Marincoss and Martinez were tried jointly, only Martinez appeals.


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was standing away from Martinez, who was “contacting the group.” It looked to Flores
as if Marincoss was simply the lookout.4
                 Flores explained at trial – confirming Marincoss’s lookout assignment –
that Marincoss soon noticed Flores’ police car, said something to Martinez, and Martinez
then also turned his head in the car’s direction. The two men quickly turned and walked
to a four-door white Honda Accord. Marincoss got in the driver’s seat and Martinez the
left rear passenger seat.
                 Flores was about to drive after them when one of the women in the group
came running toward him, “waving her arms and yelling.” She told Flores, “They have a
gun, they pointed a gun at me.” The woman added, “They’re in the white car.”
                 Flores accelerated to about 30 miles an hour in the parking lot, and was
able to follow the Accord as it left the lot and traveled through the adjacent residential
neighborhood. As Flores followed the Accord he noticed that Martinez had climbed into
the passenger seat on the driver’s side, and threw a black metallic object out the window.
The object, later recovered, turned out to be a loaded .22 caliber semiautomatic handgun.
                 Backup soon arrived, and Martinez and Marincoss were arrested. The
woman who told Flores about the pointing of the gun, however, could not be found.
                                                DISCUSSION
                 Martinez focuses on the testimony of the woman who came up running to
Flores just before he started following Marincoss and Martinez, emphasizing that the


          4       Because of its importance to this appeal as framed by Martinez, we quote this excerpt from Flores’
testimony on the respective roles of the two men as told by Flores on cross-examination, precipitated by a question
asking what Marincoss was doing that was “different from a person who was simply standing around watching an
argument.”
                  Flores answered: “In my experience, sir, his behavior was consistent with that of an individual
who’s behaving as a lookout.”
                  Flores was then asked, “What was his behavior that made you think he was a lookout” and the
officer elaborated: “He was standing away from the individual contacting the group. Generally, in my experience,
while conducting surveillances, that is common behavior for an individual acting in that role. Whenever there is a
crime being committed, individuals speak to each other and assign a role such as an individual contacting a victim
and an individual that’s [sic] role is that of simply a lookout.”


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statement, “They have a gun. They pointed a gun at me” does not say, in so many words,
that Martinez pointed a loaded firearm at her in a threatening manner. Martinez asserts
that the prosecutor presented no evidence as to how the gun was displayed or why, or
who displayed it, or how it was displayed. At root, Martinez’ appeal goes to the question
of the quantum of evidence necessary to sustain a conviction for assault with a firearm
under section 245, subdivision (b). The applicable authorities, however, do not support
him.
              A consistent line of California case law holds it is enough that a defendant
point a loaded firearm at a potential victim under circumstances which show the pointing
was done in a threatening manner. (See People v. Raviart (2001) 93 Cal.App.4th 258,
265, 267 [sustaining conviction of assault with a deadly weapon where evidence merely
showed that as police officer “came round the corner, he saw defendant pointing a
chrome handgun directly at him”]; People v. Schwartz (1992) 2 Cal.App.4th 1319, 1325-
1326 [sustaining conviction of assault with a firearm where defendant “pointed the gun at
several employees” and ammunition for gun was later found in defendant’s home];
People v. Thompson (1949) 93 Cal.App.2d 780, 782 [evidence sufficient where defendant
pointed gun toward two sheriff’s deputies even though he was aiming between them and
pointing downward, because weapon was in “position to be used instantly”].)
              In fact, a couple of published opinions have gone so far as to say it is
enough that a defendant merely point a gun at a potential victim, period, and have not
added “threatening manner” qualifiers. (See Raviart, supra, 93 Cal.App.4th at p. 263
[“Assault with a deadly weapon can be committed by pointing a gun at another person.”];
People v. Laya (1954) 123 Cal.App.2d 7, 16 [“The mere pointing of a gun at a victim
constitutes an assault with a deadly weapon, whether or not it is fired at all.”]; but cf.
People v. Hartsch (2010) 49 Cal.4th 472, 507-508 [finding it sufficient that defendant
pointed gun “in a menacing manner” under “threatening circumstances”].)



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              In the case before us, we need not rely on the authority indicating the
minimalist pointing of a gun is sufficient, because there is more. Here, substantial
evidence shows (1) it was only Martinez, and not Marincoss, who pointed the black
metallic .22 semiautomatic firearm at the unidentified woman in the McDonald’s parking
lot, and (2) the pointing was indeed done in a menacing manner under threatening
circumstances. First, officer Flores testified that Marincoss “stayed back watching” and
did not communicate with any of the group. Rather, Marincoss played the role of lookout
for Martinez, who was doing the talking. From this evidence a jury could readily
conclude that it was Martinez, not Marincoss, who pointed the gun – especially since it
was Martinez who tossed the gun from the car. He definitely had it then.
              And second, the totality of the circumstances under which Flores received
the information from the unidentified woman would allow a jury to reasonably infer
Martinez had pointed the .22 semiautomatic at her in a threatening manner. When Flores
happened upon the scene an argument was ongoing. But then Martinez and Marincoss
saw a marked police car and immediately retreated to the Accord. Only at that point did
unidentified woman run to officer Flores’ marked car, obviously in a high state of
agitation – the first words out of her mouth concerning a firearm just pointed at her. A
jury could readily conclude such events are most naturally explained by a nefarious
purpose on the part of Marincoss and Martinez – Martinez in particular – which had been
interrupted mid-transaction. That is, not only was there some pointing of a firearm, but
the pointing was done in the context of argument, and was sufficiently threatening to
prompt the person pointed at to be sufficiently worried that she felt it necessary to
frantically flag down the nearest police officer.
              Appellant is correct there are other explanations for some of the facts to
which we refer. But our job is not to decide the case; our job is to determine whether
there was substantial evidence upon which a jury could reasonably have come to the



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conclusion Appellant was guilty. After examining the record, we have come to the
conclusion there most definitely was.
                                    DISPOSITION
             The judgment is affirmed.




                                              BEDSWORTH, J.
WE CONCUR:




RYLAARSDAM, ACTING P. J.




ARONSON, J.




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