People v. Gil CA1/3

Filed 12/26/13 P. v. Gil CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A135666 v. ARMANDO GIL, (Marin County Super. Ct. Nos. SC166588A & SC173882A) Defendant and Appellant.

Defendant Armando Gil was convicted by a jury of making criminal threats. (Pen. Code, § 422.)1 On appeal, he contends that he received ineffective assistance of counsel because his court-appointed attorney failed to request a pinpoint instruction concerning the effect of voluntary intoxication. We affirm. FACTUAL AND PROCEDURAL BACKGROUND This appeal involves two separately filed cases, one of which was tried to a jury verdict and the other of which was resolved by a plea. Sentencing encompassed both cases. In case SC166588A, the Marin County District Attorney filed an information on March 29, 2011, charging Gil with one count of rape (§ 261, subd. (a)(2)) and one count of statutory rape (§ 261.5, subd. (c)). On May 27, 2011, Gil pleaded guilty to statutory rape in exchange for dismissal of the rape charge.

1 All further statutory references are to the Penal Code unless otherwise specified.

1

In case SC173882A, the Marin County District Attorney filed an information on March 17, 2011, charging Gil with having made criminal threats against Jane Doe (§ 422) on or about December 26, 2010. The case was tried before a jury in May 2011. Jane Doe, who was 23 years old at the time of trial, testified that Gil had been her boyfriend for nine years. She had his child when she was 17 years old. During the relationship, Gil physically abused her by pulling her hair and by kicking and hitting her. She broke off the relationship when she was 21 years old. When she had been trying to break up with Gil, he once told her that he considered shooting and killing her and then killing himself. Doe refused to let Gil see their child alone because she did not trust him. In December 2010, Doe and Gil had arranged for him to see their child at her sister’s house, but Doe did not drop off the child at her sister’s house as planned because she was concerned about the child getting sick. On December 26, 2010, the day that Gil was scheduled to see his daughter, Doe receive a voicemail message from Gil in which he threatened Doe and her parents after indicating that she was playing games with him. She took the message seriously and went to the police on January 3, 2011. The police made a recording of the message. After receiving the message, Doe was scared and was watching her back all the time. She would double-check her car after getting off work to make sure no one was in the car. Gil had twice before shown up in her car when she was trying to break up with him. She obtained a protective order against Gil. A recording of the voicemail message was played to the jury at trial. Except for the greeting in Spanish, the message was in English, which was Gil’s second language. The message he left was as follows: “Hola [Jane Doe]. What’s up buddy? We agree on something remember. We agreed you were gonna let me see my baby. I think you trying to play with me, you know. Eh, let you know something. I’m gonna hurt you, [Jane Doe], believe me that. I’m gonna hunt you and finish your life too. I’m gonna finish all of your family life, you keep on fuck with me. Don’t fuck with me [Jane Doe]. You can