People v. Cortes CA2/5

Filed 9/4/14 P. v. Cortes CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B254027

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA414173) v.

FRANCISCO JAVIER CORTES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Gail Ruderman Feuer, Judge. Affirmed as modified. John R. Mills, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General and Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant, Francisco Javier Cortes, of firearm assault (Pen. Code, § 245,1 subd. (a)(2)) (count 1) and false imprisonment (§ 236) (count 2). The jury further found true allegations defendant personally used a firearm in the commission of the offenses. (§ 12022.5, subd. (a).) Defendant was sentenced to 12 years in state prison on count 1 plus a concurrent, stayed 12-year term on count 2. We modify the oral pronouncement of judgment to impose a $30 court facilities assessment (Gov. Code, § 70373, subd. (a)(1)) and a $40 court operations assessment (§ 1465.8, subd. (a)(1)) as to each count. We affirm the judgment in all other respects.

II. BACKGROUND

On July 28, 2013, defendant assaulted his girlfriend, M.M., with a loaded semi- automatic firearm. M.M. spoke to a firefighter paramedic. In that conversation, M.M. told the paramedic defendant put the gun to her head and in her mouth to keep her from leaving their apartment. Law enforcement officers recovered the weapon from inside the home. Defendant claimed he put the gun in M.M.’s mouth to prevent her from committing suicide. M.M. was unavailable to testify at trial; therefore, the prosecution introduced her preliminary hearing testimony. M.M. testified at the preliminary hearing that defendant choked her while they were playing. M.M. testified, “We were playing, but he grabbed me by the neck with both hands.” M.M. further testified, “[Defendant] grabbed me a little bit hard.” M.M. said she tried to leave but defendant threatened her. He pointed a gun at her back. She testified she was not, however, afraid.