Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 09NF3311, Richard W. Stanford, Jr., Judge.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MOORE, J.
Substantial evidence supports the jury’s verdict and findings. The trial court did not err when it admitted evidence. We affirm.
I
FACTS
A jury found defendant Arturo Tiscareno guilty of assault with a firearm, and domestic violence battery with corporal injury. The jury found it true defendant personally used a firearm in committing both crimes. Defendant was sentenced to eight years in state prison.
In November 2009, B.C. who lived with defendant at the time, had a birthday party with friends, neighbors and family members for her two-year-old son. Defendant is the father of the boy. The party started at 6:00 p.m. and ended after 11:30 p.m. Defendant became intoxicated.
After the last guests left, B.C. went into the bedroom to put her son to bed. When defendant entered the bedroom, he grabbed a telephone out of her hand and told her she “wasn’t going to make a fool out of him.” Defendant opened the door to a closet outside the bedroom. When he came back to the bedroom, he held a gun in his hand.
Defendant put the gun to the left side of B.C.’s face. She closed her eyes because she “thought he was going to kill” her. Defendant pulled the trigger. B.C. testified: “When he pulled the trigger, nothing came out of the gun. He came back and he hit me with the point of the gun” on the left side of her face and head, causing her to bleed. Defendant then ordered her to leave the house and “pushed [her] around.” All the while, the two year old was in the bedroom and awake. B.C. picked up her son and left the house.
A year earlier, defendant pointed a gun at B.C. as well. He pulled a gun out from under a mattress and held it to her chest. That time, he did not pull the trigger.
Someone named Mario brought B.C. a letter from defendant while defendant was in jail. The letter said defendant did not expect she would get defendant involved with trouble, and that he “just felt sorry for his parents because they were older.” It also said B.C. should “take care of the boy, because [she] was being watched.” After she read the letter, “the guy who had it, tore it up.”
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in defendant’s own behalf. That period has passed, and we have received no communication from defendant.
To assist the court in its independent review of the record, counsel provided information about potential claims pursuant to Anders v. California (1967) 386 U.S. 738: (1) Was the evidence sufficient to support conviction of assault with a firearm? (2) Was the evidence sufficient to support conviction of domestic battery? (3) Was the evidence sufficient to support the true finding for personal use of a firearm? (4) Did the trial court err in admitting a prior domestic violence incident under Evidence Code section 1109? and, (5) Did the trial court err in admitting evidence of intimidation or authorized contact directed towards the victim?
II
DISCUSSION
Sufficiency of Evidence
In addressing challenges to the sufficiency of evidence, “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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”‘ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“Any person who commits an assault upon the person of another with a firearm shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than six months and not exceeding one year, or by both a fine not exceeding ten thousand dollars ($10,000) and imprisonment.” (Pen. Code, § 245 subd. (a)(2).) (Unless otherwise stated, all further statutory references are to the Penal Code.) “[N]othing in section 245, subdivision (b), or in any apposite case law, indicates that assault with a semiautomatic weapon requires proof the gun was operable as a semiautomatic at the time of the assault. A person may commit an assault under the statute by using the gun as a club or bludgeon, regardless of whether he could also have fired it in a semiautomatic manner at that moment. [Citations.]” (People v. Miceli (2002) 104 Cal.App.4th 256, 270.) Here defendant used a gun as a club or bludgeon, which is sufficient evidence for assault with a firearm.
“Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.” (§ 273.5, subd. (a).) “As used in this section, ‘traumatic condition’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.” (§ 273.5, subd. (c).) Here defendant and the victim cohabited and were the parents of a young child. The injury defendant caused was severe enough to cause bleeding.
“Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” (§ 12022.5, subd. (a).) Here it was defendant who personally held the gun while the victim was assaulted.
Under the circumstances in this record, we cannot conclude there was error. Substantial evidence supports the verdict and findings of the jury.
Admission of Evidence
“We review for an abuse of discretion a trial court’s admission of evidence.” (People v. Booker (2011) 51 Cal.4th 141, 170.) Before the trial court admitted evidence of the letter from defendant which was delivered to the victim by a man named Mario who tore it up after she read it, the court permitted extensive argument from both sides. In fact, the court precluded admission of other evidence offered by the prosecutor. But with regard to the letter, the court found there was sufficient connection with defendant since the victim recognized his handwriting in the letter and the letter was some evidence of defendant’s consciousness of guilt.
A trial court’s ruling regarding admission of evidence under Evidence Code section 1109 specifically is also reviewed under the abuse of discretion standard. (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704.) “[I] in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1109, subd. (a)(1).) While evidence of prior acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts, the Legislature has created an exception in cases involving domestic violence. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.) Here, before permitting its admission, the court carefully analyzed the effect of both propensity evidence and the prejudicial effect of such evidence.
The court’s rulings do not amount to an abuse of discretion. Under the circumstances we find in this record, we cannot conclude the court erred.
III
DISPOSITION
We have examined the record and found no other arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.