People v. Kebets CA3

Filed 7/7/14 P. v. Kebets CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C073377

Plaintiff and Respondent, (Super. Ct. No. 12F04580)

v.

ANDREY KEBETS,

Defendant and Appellant.

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