People v. Vera CA5

Filed 8/20/14 P. v. Vera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F066398 Plaintiff and Respondent, (Super. Ct. No. F12905691) v.

TONY PEREZ VERA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Leanne Le Mon and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Detjen, J. and Franson, J.

A jury convicted appellant, Tony Perez Vera, of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1))1 and carrying a loaded firearm (§ 25850, subd. (a)). On appeal, Vera contends: (1) the court erred in admitting a prior conviction for impeachment purposes; and (2) the court committed instructional error. We affirm. FACTS The Prosecution Case The prosecution evidence established that on July 30, 2012, Vincent Graves was working as a security guard for American A Plus Security. At approximately 8:15 p.m., Graves was on patrol at the San Ramon apartment complex in Fresno when he saw Jaime Reynaga, who was heavily intoxicated, facing and leaning against a wall. Graves approached Reynaga from Reynaga’s left side and asked if he was alright. When Reynaga “came off the wall” and turned towards him, Graves noticed Reynaga was holding a revolver in his right hand by the handle, pointing down. At that moment, Vera came through a door that leads to a parking garage, stepped between the men with his back towards Graves, and stated, “No, man, it is just a toy.”2 Vera then took Reynaga through a gate and both men left.3 Meanwhile, Graves called 911 and gave a description of both men.4 Fresno Police Officer James Young heard a dispatch about a man with a gun and responded to the area. As Officer Young travelled north on Sixth Street, he saw Vera and

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 It appeared to Graves that Vera was attempting to diffuse the situation. 3 Vera testified that Graves approached Reynaga with a gun drawn (see post). The parties, however, agreed not to ask Graves any questions regarding whether he possessed a gun because there was an issue regarding Graves’s right to lawfully possess a firearm. 4 Four buildings made up the apartment complex. During cross-examination, when asked whether anyone was outdoors during his encounter with Reynaga and Vera, Graves testified that he had encountered some residents on the other side of the first apartment building. However, after Reynaga and Vera left, he walked through the complex and did not see anyone on the other side.