People v. Macias CA2/1

Filed 10/24/14 P. v. Macias CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B254681

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA415233) v.

ALBERT GABRIEL MACIAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E. Edwards, Judge. Affirmed. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent. _________________________

SUMMARY Albert Gabriel Macias appeals from a judgment entered after the trial court found him guilty of one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). 1 Appellant contends the trial court abused its discretion by failing to treat the conviction as a misdemeanor. We affirm.

FACT AND PROCEEDINGS BELOW I. Prosecution Evidence Appellant was a 54-year-old transient who lived near El Sereno Park. Angel Diaz and Guissepe Lopez were volunteer workers at the El Sereno Recreational Center. Diaz testified that on August 10, 2013, he was sitting on the roots of a tree waiting to start work with Lopez who was sitting to his side. According to Diaz, appellant approached Diaz and Lopez repeatedly stating “Fuck the Raiders” and “Fuck the Raider Nation” and stepped toward Lopez.2 Diaz testified that although he later told the police that appellant had a knife, at trial Diaz stated that Lopez told Diaz that appellant pulled a knife on him but Diaz did not see a knife. Diaz stated that he was not focused on appellant or Lopez, that he was “shrugging it off” and “didn’t think anything of it” and was unsure why appellant was talking “smack” about the Raiders. Lopez told appellant to leave three times and appellant then left. Diaz and Lopez went into the gym at the recreation center headed to the office. Appellant followed them, saying they were snitches, and Diaz responded that he was not a snitch and almost got into a fight with appellant. Diaz stated he didn’t “know what [appellant was] going crazy for.” Lopez testified that on August 10, 2013, he was standing talking to Lopez who was sitting on a tree branch. Lopez did not see appellant approach and did not notice him until he heard appellant saying “Fuck Raider Nation” and came behind Lopez on his left