People v. Konstantinov CA3

Filed 5/21/21 P. v. Konstantinov CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C089817

Plaintiff and Respondent, (Super. Ct. No. 18FE018897)

v.

VITALIY KONSTANTINOV,

Defendant and Appellant.

A trial court sentenced defendant Vitaliy Konstantinov to a three-year term in state prison after a jury found him guilty of assault with a firearm, making a criminal threat, assault by means of force likely to produce great bodily injury, and concealing evidence. Defendant contends the trial court abused its discretion when it denied him probation. We disagree and affirm.

1

BACKGROUND Defendant and his neighbor had a difficult relationship. At one point, defendant sold a car to his neighbor. The car had problems, and the neighbor filed a small claims lawsuit against defendant. He enlisted the assistance of the victim to personally serve the lawsuit on defendant. The victim attempted to serve defendant at defendant’s house. He walked onto the property calling defendant’s name and, after identifying defendant, left the service documents on the ground. As he walked away to leave, defendant struck him in the head and knocked him to the ground. Defendant punched and kicked the victim while he was on the ground. Defendant was holding a gun, cocked it, held it to the victim’s head, and told him, “I’m going to shoot you and you’re going to be six feet underground.” Defendant’s father pulled defendant away from the victim and defendant took the victim’s phone. The victim had a bloody nose and sustained injuries to his face, neck, and back. When police searched defendant’s property, they found a cocked but unloaded handgun. At trial, defendant and his father testified for the defense. Defendant’s father testified that the victim struck defendant first and defendant then hit the victim twice. Defendant did not hit the victim while he was holding a gun, and only retrieved the gun later in the encounter. Once he had the gun, he did not point it at the victim, nor did he make any threats. Defendant testified that the victim came onto his property and began threatening defendant. Defendant told the victim to leave multiple times, but the victim tried to punch defendant, so defendant hit him twice in response. Defendant then went to his shed and retrieved his gun, hoping that it would induce the victim to leave. He did not point the gun at the victim, cock the gun, or threaten the victim.