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Filed 7/7/14 P. v. Kebets CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDREY KEBETS,

Defendant and Appellant.

C073377

(Super. Ct. No. 12F04580)

A jury convicted defendant Andrey Kebets of negligently discharging a firearm, a 

felony. (Pen. Code, § 246.3.)

1,2

 Defendant contends the trial court erred prejudicially by 

 

1 Undesignated section references are to the Penal Code.

2 Section 246.3 provides in pertinent part: “Except as otherwise provided by law, 

any person who willfully discharges a firearm in a grossly negligent manner which could 

result in injury or death to a person is guilty of a public offense . . . .”

As will appear, defendant maintained he fired a blank round from his revolver in 

self-defense and defense of his family, aiming into the air, against an aggressive dog. It 
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instructing the jury, over objection, with CALCRIM No. 371 (Consciousness of Guilt: 

Suppression and Fabrication of Evidence). We conclude the instruction was properly 

given. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

On July 2, 2012, Evangolos Litsas, his seven-year-old son, four-year-old daughter, 

and their 11-month old, 52-pound Coonhound puppy “Bo” returned to their apartment 

building from grocery shopping. Litsas parked in his assigned covered parking space in 

the building’s lot. He handed Bo’s leash to his daughter, along with the keys to the 

apartment. He and his son started to unload groceries from the trunk of the car. 

Litsas saw a car back into a nearby space. Hearing someone yelling behind him, 

he turned and saw defendant, a neighbor in the apartment complex, stomping his feet at 

and chasing Bo. Litsas’s daughter had apparently lost her hold on Bo and the leash. 

At some point, defendant went back to the trunk of his car and returned with a 

“cylinder-style” handgun that looked like a .357 or a .38. Defendant screamed at Litsas,

“Get control of your dog, or I will fucking kill it.” 

According to Litsas, Bo ran over toward him and his son. Defendant came within 

five feet of them, pointed the gun over Litsas’s son’s head, and fired. Litsas grabbed his 

son and Bo, went upstairs to his apartment, and called 911. The recorded call was played 

for the jury. 

Litsas asked others in the complex where defendant and his family lived. As 

Litsas approached defendant’s apartment, defendant came out and started yelling at 

Litsas. When defendant learned that Litsas was calling the sheriff, defendant demanded 

 

was undisputed at trial that blanks are very unlikely to injure others even at close range. 

Thus, if accepted by the jury, this defense would have negated two elements of the 

offense: that the shooting could have resulted in injury or death to a person, and that it 

was not committed in self-defense or defense of another. 
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the phone to speak to the sheriff himself. Litsas did not hand defendant the phone. 

Defendant went to his car, opened the driver’s door, and walked back toward the trunk. 

Within 5 to 10 minutes, law enforcement vehicles arrived. An officer in a law 

enforcement helicopter ordered defendant to walk out to the middle of the parking lot and 

kneel. When Litsas gave a statement to the first responding officer soon afterward, he 

was visibly shaken. 

Deaven Warren, a neighbor who was in the parking lot working on a car when 

Litsas’s and defendant’s cars arrived, saw Bo trot through the parking lot and stop where 

defendant’s little girl was standing. Bo was not acting aggressive and did not appear 

dangerous to Warren, but the little girl looked uneasy. Warren saw defendant yell at 

Litsas, who yelled back. Defendant went to his car, returned with a silver revolver, and 

threatened to “put [the dog] down” if Litsas did not get it under control. Apparently 

assuaged by Litsas, defendant put the gun away. But then Bo wandered toward 

defendant’s son. Angered again, defendant ran up behind Bo, pointed the gun in the air, 

and fired a shot over the head of Litsas’s son. 

Sacramento County Sheriff’s Deputy Matthew Silvey detained defendant at the 

scene. Defendant told Silvey the gun was locked in the trunk of defendant’s car. Silvey 

found a Smith & Wesson revolver in the trunk, with a cable lock through the cylinder. 

He also found an ammunition box holding seven live .357 Magnum bullets in the car’s 

glove compartment. The investigating officers did not find any shell casings in the gun 

or anywhere in the vicinity. 

Defendant told Deputy Silvey he had fired a blank, not a live round. But after the 

officers had searched the area, Silvey told defendant they had not located any of the spent 

blank he claimed to have fired. 

When a revolver is fired, a shell casing or cartridge remains in the cylinder and 

must be removed by hand. This is true whether the shot fired is live ammunition or a 
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blank. However, a shell casing left by a blank cartridge looks very different from one left 

by a live round. 

A blank, like a live round, makes a loud noise when fired and causes flame to flare 

out of the gun’s muzzle. But firing a blank does not expend a projectile and is unlikely to 

injure anyone. 

Defense Case

Defendant’s wife, Svetlana, testified that in July 2012 their youngest daughter was 

four years old and smaller than average for her age. According to Svetlana, Litsas’s dog 

ran toward the girl, getting very close to her face; when the girl raised her hand to protect 

herself, the dog started barking. Svetlana was yelling for the dog’s owner while 

defendant started trying to block the dog’s path. Defendant also began yelling at the 

dog’s owner. The dog then ran toward Svetlana and growled at her. 

Defendant raised his leg at the dog, which ran around the SUV parked next to 

defendant’s car. The dog then reappeared and ran up to Svetlana. She saw that defendant 

had a silver bullet in his hand and was carrying a gun. As she ran past him to rejoin their 

children, she saw the dog running in their direction again. Defendant yelled a warning to 

the dog’s owner, then fired his gun in the air to scare off the dog. According to Svetlana, 

defendant did not point the gun at anyone or threaten anyone. After firing it, he put it 

back in the trunk. 

Defendant testified that he bought a .357 revolver in 2009 to use against bears 

when he went camping; he believed blanks were ideal for the purpose. On the day of the 

incident, he had the gun in his car trunk because he was planning a camping trip. 

Defendant owned three kinds of ammunition: .357 rounds, .38 Special rounds, 

and blanks. He kept all three in the ammunition box in his glove compartment to 

economize on space. He could tell the live rounds from the blanks by their appearance. 

When Litsas’s dog ran toward defendant’s daughter, he was afraid it would attack 

her. When the dog ran toward Svetlana, his whole family “freaked out.” His attempt to 
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chase it away by sticking his leg out did not deter it. The dog kept running around and 

barking. He grabbed his gun from the trunk and unlocked it, then walked to the front of 

the car, opened his ammunition box, and retrieved several rounds, including one blank 

round. (However, he loaded only one round in the chamber, while holding the others in 

his left hand “just in case [he] need[ed] them.”) In the meantime, the dog was still 

running around, out of control. Despite defendant’s warning to Litsas that defendant 

would “put it down,” Litsas was not attempted to get the dog under control. 

Seeing the dog moving toward his family again, defendant raised his gun and fired 

a blank round into the air as a warning shot. Startled, the dog crouched down, then 

walked away. Defendant put the gun and ammunition back in the car, locking them 

appropriately, and walked to his apartment with his family. 

Defendant acknowledged there should have been a shell casing in the revolver 

after he fired the blank, but he could not remember handling the casing. He was 

“thinking about other things” and “didn’t think it would be important.” 

DISCUSSION

During the instructions conference, defense counsel objected to the giving of 

CALCRIM No. 371, which states in pertinent part: “If the defendant tried to hide 

evidence . . . , that conduct may show that (he/she) was aware of (his/her) guilt. If you 

conclude that the defendant made such an attempt, it is up to you to decide its meaning 

and importance. However, evidence of such an attempt cannot prove guilt by itself.”3 

Counsel argued there was no evidence to support the instruction because according to 

defendant’s undisputed account he told the officers where his gun was and he simply did 

not remember what he had done with the shell casing in the gun’s cylinder. The 

prosecutor replied the jury could reasonably infer defendant, knowing the officers were 

 

3 Counsel also objected to CALCRIM No. 361 (Failure to Explain or Deny Adverse 

Testimony). Defendant does not renew that objection on appeal.
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coming, deliberately removed and hid the casing. The trial court agreed. The court 

thereafter gave the challenged instruction. 

Instructions on consciousness of guilt are properly given if supported by “some 

evidence in the record that, if believed by the jury, would sufficiently support the 

suggested inference. [Citations.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

102; People v. Jackson (1996) 13 Cal.4th 1164, 1222-1225; People v. Johnson (1992) 

3 Cal.4th 1183, 1235-1236.) Furthermore, instructions such as CALCRIM No. 371, 

which “ma[k]e clear to the jury that certain types of deceptive or evasive behavior on a 

defendant’s part could indicate consciousness of guilt, while also clarifying that such 

activity was not of itself sufficient to prove a defendant’s guilt, and allowing the jury to 

determine the weight and significance assigned to such behavior,” actually “benefit[] the 

defense, admonishing the jury to circumspection regarding evidence that might otherwise 

be considered decisively inculpatory. [Citations.]” (People v. Jackson, supra, 13 Cal.4th 

at p. 1224.)

Here, the evidence showed: (1) after a revolver is fired, a shell casing remains in 

the cylinder unless manually removed; (2) there was no casing in the cylinder of 

defendant’s revolver or anywhere else in the vicinity when the police found the revolver;

and (3) there was no apparent opportunity for anyone else to gain access to the gun in 

defendant’s locked trunk to remove the casing from the gun. Together, that evidence 

could reasonably give rise to the inference that defendant deliberately disposed of it to 

hide it from the police. As CALCRIM No. 371 correctly states, this inference would not 

suffice to prove defendant’s guilt: the jury could still have concluded defendant fired a 

blank, or he acted in justifiable self-defense or defense of others, even if the jury also 

found he knowingly hid the casing and then testified falsely to a lapse of memory on that 

point.

It is frankly difficult to understand why defendant thinks the trial court erred by 

giving this instruction. As best we can determine, defendant asserts that because he 
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testified to an innocent “failure to recollect” what he had done with the casing, it was 

somehow unfair for the prosecutor to use CALCRIM No. 371 to support an attack on 

defendant’s credibility. Not surprisingly, defendant fails to cite any authority to support 

this assertion, and we know of none.

Defendant also appears to assert the evidence we have outlined did not provide a 

basis for drawing a reasonable inference he hid evidence. According to defendant, “there 

[were] not even probabilities; there [were] mere possibilities, and it is impossible to tell 

which is more possible. This does not rise to the level of a permissible inference under 

state law. Any conclusion as to which inference to draw would be speculation, not 

rational inference.” But defendant does not explain what “possibilities” could account 

for the absence of a shell casing in the cylinder of his revolver, other than his deliberately 

entering the locked trunk of his car to access his gun, removing the casing from his gun 

cylinder, and concealing it from the investigators after he learned Litsas called the sheriff. 

Thus, his point is unpersuasive.

Finally, defendant asserts the challenged instruction improperly shifted the burden 

of proof. But the only California decision defendant cites to support this assertion 

actually held it does not unconstitutionally shift the burden of proof to instruct the jury it 

may draw inferences adverse to the defendant from his failure to explain or deny 

evidence against him, and the instruction may therefore be properly given if supported by 

the record. (People v. Saddler (1979) 24 Cal.3d 671, 677-683 [former CALJIC No. 

2.62].) Therefore, defendant’s contention fails for want of apposite authority supporting 

it. 

Because we conclude that CALCRIM No. 371 was properly given, we do not 

address defendant’s claim that the instruction prejudiced him. 

DISPOSITION

The judgment is affirmed.
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 NICHOLSON , Acting P. J.

We concur:

 BUTZ , J.

 MURRAY , J.