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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL ANGEL MARTINEZ, Defendant and Appellant. G047280
(Super. Ct. No. 12CF0204)

O P I N I O N

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 De fendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Pl aintiff and Respondent.
* * *2 Daniel Angel Martinez was convicte d 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 lo t near central Santa Ana. He was sentenced to a low term of three years, plus an extra three years for having pe rsonally used a firearm
in the commission of an a ssault (§ 12022.5, subd. (a)), then pl aced on probation. 2 He appeals his assault conviction on the theo ry 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 refe rred 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 in to the lot, turned his headlights off, and
lowered his window. He hear d loud voices. While he coul dn’t make out the words, he could tell “they were engage d in an argument.”
The two men would later be identifie d 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 ra ther “stayed back watching.” Marincoss

1 All statutory references are to the Penal Code. 2 He was also convicted of carrying a concealed w eapon 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.3 was standing away from Martinez, who was “c ontacting the group.” It looked to Flores
as if Marincoss was simply the lookout. 4 Flores explained at trial – confir ming Marincoss’s lookout assignment – that Marincoss soon noticed Flores’ police ca r, said something to Martinez, and Martinez
then also turned his h ead in the car’s direction. The two men quickly turned and walked
to a four-door white Honda Acco rd. 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 a nd yelling.” She told Flores, “They have a gun, they pointed a gun at me.” The wo man 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 Acco rd 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 th rew a black metallic object out the window. The object, later recovered, turn ed out to be a lo aded .22 caliber se miautomatic handgun. Backup soon arrived, and Martinez and Marincoss were arrested. The
woman who told Flores about the pointing of the gun, ho wever, could not be found.
DISCUSSION Martinez focuses on the testimony of the woman who came up running to Flores just before he started following Ma rincoss and Martinez, emphasizing that the

4 Because of its importance to this appeal as frame d 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 aw ay 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 a ssign a role such as an individual contacting a victim and an individual that’s [ sic ] role is that of simply a lookout.”4 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 g un 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 n ecessary to sustain a convicti on for assault with a firearm under section 245, subdivision (b). The ap plicable 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 u nder 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 wi th a deadly weapon wh ere evidence merely showed that as poli ce officer “came round the corne r, he saw defendant pointing a chrome handgun dir ectly at him”]; People v. Schwartz (1992) 2 Cal.Ap p.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 [e vidence sufficient where defendant pointed gun toward two sheriff’s deputies ev en though he was aimi ng between them and pointing downward, because weapon was in “position to be used instantly”].) In fact, a couple of published opini ons 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 wea pon can be committed by pointing a gun at another person.”]; People v. Laya (1954) 123 Cal.App.2d 7, 16 [“The me re pointing of a gun at a victim
constitutes an assault with a de adly weapon, whether or not it is fired at all.”]; but cf. People v. Hartsch (2010) 49 Cal.4th 472, 507-508 [fi nding it sufficient that defendant pointed gun “in a menacing manner” unde r “threatening circumstances”].)5 In the case before us, we need no t 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, a nd not Marincoss, who pointed the black
metallic .22 semiautomatic firearm at the uni dentified woman in the McDonald’s parking lot, and (2) the pointing was in deed done in a menacing manner under threatening circumstances. First, officer Flores testifie d that Marincoss “stayed back watching” and did not communicate with any of the group. Ra ther, Marincoss played the role of lookout for Martinez, who was doing the talking. Fr om 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 circum stances under which Flores received
the information from the unid entified woman would allow a jury to reasonably infer Martinez had pointed the .22 semi automatic at her in a threat ening manner. When Flores happened upon the s cene an argument was ongoing. Bu t then Martinez and Marincoss saw a marked police car and immediately retreate d 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 Marinco ss and Martinez – Martinez in particular – which had been interrupted mid-transaction. That is, not on ly was there some pointing of a firearm, but the pointing was done in the context of ar gument, and was suffici ently threatening to prompt the person pointed at to be sufficien tly worried that she felt it necessary to frantically flag down th e 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 eviden ce upon which a jury could re asonably have come to the6 conclusion Appellant was guilty . After examining the reco rd, 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.