People v. Juan CA2/6

Filed 7/6/15 P. v. Juan CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B256573 (Super. Ct. No. BA412602-01) Plaintiff and Respondent, (Los Angeles County)

v.

ALVIN STANLEY JUAN,

Defendant and Appellant.

Alvin Stanley Juan appeals a judgment following conviction of two counts of assault with a firearm, with a finding that he personally used a firearm during commission of the crimes. (Pen. Code, §§ 245, subd. (a)(2), 12022.5, subd. (a).)1 We affirm. FACTUAL AND PROCEDURAL HISTORY Juan and Hisilda Araque were neighbors in an apartment complex on Holmes Avenue in Los Angeles. In the afternoon of May 23, 2013, Araque's boyfriend, Gabriel Sanchez, visited her apartment. As Sanchez and Araque placed their children in Sanchez's vehicle, Juan and his girlfriend, Yesenia Castro, approached. Juan asked Sanchez, "What's up?" in an angry voice. Sanchez replied in the same manner, asking "What's up?"

1 All further statutory references are to the Penal Code unless stated otherwise.

The two men began to argue, "face-to-face" approximately six inches apart. Sanchez stated, "Let's get down," "You're a little bitch," and "Let's fight." During the exchange, Sanchez said, "Man, I know you're gonna go get your gun. Go get your gun." Juan then went to his apartment and returned shortly with a black handgun that was concealed in a sock. Juan removed the sock and pointed the handgun at Sanchez, who asked, "So are you going to shoot it or just going to take it out?" Juan pointed the handgun at Sanchez twice before Araque's mother and Castro separated the two men and pulled Juan's arm away. Araque's mother then stated that she was calling for police assistance. Juan responded that he would "get [Sanchez] back." Sanchez testified that he was not frightened during the incident: "If I was gonna die, I was gonna die. What can I say?" Juan returned to his family's apartment prior to the arrival of police officers. Juan's mother, Paula Cano Francisco, let him inside the apartment after he tried to force open the locked apartment door. She asked Juan to explain the argument outside. In response, Juan pointed the handgun at her as she stood approximately six to ten feet away. Francisco stated, "Are you going to shoot me? Do it." Juan turned away and left the apartment through his bedroom window, taking the handgun with him. Investigating police officers did not recover a handgun from Juan's apartment. Juan's mother and father testified at trial that they did not know whether the handgun was a toy. During a proceeding outside the jury's presence, Juan's counsel stated that there was "no argument" regarding the nature of the gun: "There's no argument that it was a toy gun. No one is saying this was a fake gun." The jury convicted Juan of two counts of assault with a firearm and found that he personally used a firearm during commission of the crimes. (§§ 245, subd. (a)(2), 12022.5, subd. (a).) The trial court sentenced him to a prison term of seven years for each count, consisting of a three-year midterm plus four years for the firearm use enhancement. The court ordered that the sentence for the second count be served concurrently to the sentence for the first count. The court also imposed a $300 restitution fine, a $300 parole revocation restitution fine (stayed), an $80 court security assessment,