People v. Lopez CA5

Filed 4/1/16 P. v. Lopez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F069566 Plaintiff and Respondent, (Super. Ct. No. F13910770) v.

JOEY RIGOBERTO LOPEZ, OPINION Defendant and Appellant.

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

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

A jury convicted appellant Joey Rigoberto Lopez of assault with a firearm (count 1/Pen. Code, § 245, subd. (a)(2)),1 and possession of a firearm by a felon (count 2/§ 29800, subd. (a)(1)), and found true a personal use of a firearm enhancement in count 1 (§ 12022.5, subd. (a)). Following independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we affirm. FACTUAL AND PROCEDURAL HISTORY On November 8, 2013, at approximately 8:00 p.m., Alfonso Chavez walked to the Fiesta Market in Huron, California and encountered Lopez standing outside. Chavez confused Lopez with Lopez’s cousin or uncle and referred to him by the wrong name, causing Lopez to become angry. Lopez challenged Chavez to fight in an alley. Chavez, however, continued walking inside the store. When Chavez came out, Lopez was no longer standing at the entrance. After Chavez walked two blocks towards his house, Lopez rode up on a bicycle and told Chavez to “take out” what he had. Chavez replied that the did not have anything. Lopez then pulled a sawed-off shotgun from his shorts, pointed it at Chavez’s stomach, and stated that he was going to kill him. Chavez unsuccessfully attempted to take the shotgun from Lopez, then pushed him and ran. When Chavez was 10 to 15 feet away from Lopez, he heard the shotgun discharge and felt something strike him on his right hip.2 Chavez turned around and saw Lopez ride off on his bicycle. After Chavez called 911, Huron Police Officer Carlos Esqueda arrived on the scene and summoned an ambulance. After Chavez was treated on the scene for his injuries, Officer Esqueda took Chavez to the police department. Although Chavez was not personally acquainted with Lopez, he was familiar with him because when Chavez first arrived in Huron two years earlier, he saw Lopez sitting in an alley. At the police