People v. Hernandez

Opinion

LILLIE, P. J.

The trial court found defendant guilty of two counts of assault with a firearm, and to be true the use allegations. On probation

[770]

hearing and sentence the court granted defendant’s motion for new trial, but two days later, on its own motion, vacated the order, set the motion for hearing and, after taking testimony and hearing argument, denied the same and sentenced defendant to state prison. He appeals from the judgment.

The sole appellate issue is whether the trial court, once having granted the motion for new trial, had jurisdiction to vacate its order, rehear the motion and deny the same. We hold that it did not, and reverse the judgment.

Facts

About 3 p.m. Ismael Magana was walking alone near an apartment complex when defendant, with four friends, approached him and insisted he buy a necklace; Magana said no and tried to walk past defendant who attempted to hit him; Magana ran away. Shortly thereafter, Magana returned with three friends—Gonzalez, Cordova and Kasama; they were unarmed, walked into the complex and asked for defendant; defendant, carrying a rifle in a blue jacket, came out of an apartment with another man; when Magana saw the gun he told his friends to run and, as they ran, Magana heard someone say, “shoot to kill,” and a shot was fired; Magana was hit in the leg with two shotgun pellets; Kasama was hit in the back. In the past, Magana has had problems with defendant and his friends; he identified defendant at trial but was unable to identify him in a photo lineup, although Gonzalez was able to identify defendant in the lineup as the one who had the gun.

Oificer Castro found a spent shotgun shell in defendant’s apartment on the living room floor, but did not find a shotgun. Defendant told him he and two friends were in the apartment, heard a commotion, went outside and stood around with a crowd for 10 minutes, nothing happened and they returned to the apartment. Oificer DeClercq tested defendant’s hands for gunshot residue; the results indicated defendant had recently fired or handled a firearm.

The defense was that defendant did not fire any shot, and that his roommate, Marco Escobar, loaded his shotgun, went outside, fired the shot, returned to the apartment and put his shotgun away.