P. v. Martinez CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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