People v. Toro CA4/3

Filed 3/2/15 P. v. Toro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050022

v. (Super. Ct. No. 13WF2035)

PEDRO FRANCISCO TORO, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. William W. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

* * *

Since middle school, Damon Sutter has made threats to commit suicide when a female rebuffed his expression of affection for her. On the day of defendant Pedro Francisco Toro’s arrest, Sutter, then 19 years old, was at the home of his mother and her boyfriend Matt Maybrier. Defendant was also at the residence. That evening Sutter sent text a message to Haylie Barnes, stating he was in love with her. Barnes responded that she did not have the same feelings toward him. She testified that Sutter’s text responses suggested he was not “emotionally stable.” At one point Sutter sent Barnes a text stating “he had no purpose” and “threatened to take his life.” Barnes became frightened and called 911 to report Sutter’s suicide threat. Garden Grove Police Officer David Chang went to the residence in response to a report that a person named Sutter had threatened to commit suicide with a gun. Upon his arrival, the garage door was open, but the garage unlit. He noticed an individual was in the garage and directed him to come outside. Defendant emerged wearing a holster. Chang asked defendant if he was armed and defendant said no. Chang conducted a pat-down search of defendant that resulted in the discovery of two fully loaded magazines of ammunition and three shotgun shells. A subsequent check of police records reflected defendant had previously suffered a theft-related felony conviction. While Chang was frisking defendant, another person came out of the house. He identified himself as Sutter, admitted he sent the text messages to Barnes, but denied he was suicidal. Sutter agreed to go to a hospital for a mental evaluation. The prosecution charged defendant with possession of ammunition by a person prohibited from owning or possessing a firearm (Pen. Code, § 30305, subd. (a)(1), all further undesignated statutory references are to this code) and alleged he had served a prior prison term (§ 667.5, subd. (b)). The case proceeded to a jury trial. Defendant testified in his own defense. He claimed he was at the house to replace the carpet in Maybrier’s van. While there, defendant heard Sutter make statements about committing suicide. He testified Sutter “told me . . . that, you know, he